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September 2020 “Check-in” on Labor & Employment Developments: CSB, OSHA, Payroll Tax Deferral Via Executive Order, AI in Employee Selection

While the Trump Administration has not missed a beat in appointing federal judges, it has ignored (or worse) filling vacancies in administrative agencies  created and maintained by past administrations to safeguard employees against unnecessary workplace risks as well as against discrimination.    A recent example is provided by the position asserted by Katherine Lemos, chairwoman and sole member of the U.S. Chemical Safety and Hazard Investigation Board (CSB), an independent nonregulatory agency with a five-member leadership panel nominated by the president and confirmed by the U.S. Senate, that the agency may proceed with her as a quorum of one.  Following departure of interim head Kristen Kulinowski on May 1, 2020,  in a July Environmental Protection Agency Office of Inspector General report called for “elevated urgency” for nomination of new members to lead the CSB.  Not only has the Trump Administration failed to nominate new members, but also it has called for the Board itself to be eliminated and its budget scrapped entirely.   The CSB investigates the causes of chemical disasters and issues recommendations to other federal agencies, companies and the general public to reduce risk of future accidents and is currently conducting 14 investigations into chemical releases and explosions.

            Three workers suing as Jane Does and an advocacy group called Justice at Work filed suit in the U.S. District Court for the Middle District of Pennsylvania seeking an injunction to require OSHA to inspect meat plant Maid-Rite ‘s site in Dunmore, Pennsylvania for Covid-19 hazards in order to protect employees from “imminent hazards.”  Among the allegations are contentions that an OSHA safety inspector tipped off this meat plant prior to a visit at which OSHA failed to issue a citation notwithstanding alleged work conditions which force workers to work “shoulder-to-shoulder.” Other allegations include denial of cloth face coverings, failure to provide adequate handwashing facilities, creating incentives for workers to report to work while sick, and failing to advise workers of potential covid exposure.

Recently effective via presidential Executive Order is a deferral of collection of payroll taxes of federal employees. Ostensibly to provide a “financial boost” to individuals  impacted by the pandemic, federal employee unions, i.e., National Treasury Employees Union and AFGE have protested that the “deferral” will actually create more hardship by requiring employees to pay twice as much tax in the beginning of 2021 to cover the deferred taxes.  Whereas many major private sector employers are declining to participate in the initiative, the government is forcing the deferral upon the federal workforce.  Additionally, they note, if the administration succeeds in convincing Congress to “forgive” employees of the obligation to repay, then this will adversely affect the Social Security system.

And a newer form of threat to employee selection and hiring: Artificial Intelligence!

Larger corporations such as McDonald’s, PricewaterhouseCoopers LLPO, Colgate-Palmolive Co., Boston Consulting Group and Kraft Heinz Co., are using algorithmic hiring tools to screen the flood of job applicants.  Businesses such as HireVue and Pymetrics offer biometric scanning tools which purport to evaluate candidates based upon speech patterns, expressions or eye movements which can discriminate against applicants with disabilities.  Selection procedures are subject to governance of the Uniform Guidelines on Employee Selection Procedures (UGESP) which have been agreed upon by EEOC, DOJ, Civil Service and Department of Labor which mandates validation to ensure the absence of adverse impact on job applicants of protected status.  The defense bar has  recommended deferral of implementation of such systems pending assurance of human audit, control and decisionmaking to mitigate the risk of unlawful discriminatory impact.