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Punching In: Pay Data, Overtime, and Artificial Intelligence

Aug. 12, 2019, 10:00 AM

Monday morning musings for workplace watchers

EEOC’s New Street Fighter | Labor Dept. Hits Mark on Overtime |AI on Congress Agenda

Chris Opfer: New Equal Employment Opportunity Commission General Counsel Sharon Gustafson starts her first full week on the job today.

Gustafson, who was sworn in last Wednesday, has spent much of the last two decades representing workers accusing their employers of workplace bias. She may not bring the carrots over sticks, compliance-based approach to the EEOC that the business community and others typically expect from a Republican general counsel.

“I think of my work as having been retail, street-level civil rights litigation,” Gustafson said in a statement announcing her swearing in. “I look forward to using my decades of experience in employment law to conduct the litigation of the EEOC.”

Does that mean Gustafson plans to strap on a leather vest and swing a heavy metal chain around the halls of EEOC headquarters like an extra from “The Warriors?” We’ll be keeping an eye on new litigation out of the agency in the coming months for signs of where she may be looking to take the fight.

That includes sexual orientation and gender identity discrimination cases. The Justice Department has until Friday to file a brief in the consolidated trio of LGBT bias cases currently before the U.S. Supreme Court.

Meanwhile, the EEOC’s ongoing pay data collection saga looms large over the three current members of the five-seat commission. Member Victoria Lipnic (R) turned some heads on the management bar when she recently said there will be no last ditch move to try to shield businesses from having to turn over an expanded range of data. A federal judge in D.C. in March unexpectedly revived the Obama-era collection initiative, forcing companies to start coughing up the data by the end of next month. The Trump administration is appealing the decision. Some had hoped lawyers would ask the judge to freeze the data collection while the court battle sorts itself out.

Lipnic, who has long opposed the data collection as overly burdensome on companies, was saying what most who have been following the case already knew: It’s too late to put the genie back in the bottle, at least for now. But it could be quite a while before the EEOC scraps the collection, if she has her way. The EEOC’s former acting boss said at a recent conference that the agency should conduct “an honest assessment of what we learn from the data” to determine if it is worth the trouble for employers. That sounds like something that could take some time, meaning that companies might want to be prepared to provide more data if a second round of pay collection starts early next year.

“I think it’s not the quick fix that most employers would want,” Proskauer attorney Guy Brenner said of a possible study. “At the end of the day, employers would really like to see a one and done.”

Ben Penn: We’ve been telling you for weeks now that Pat Pizzella wants his team focused like a laser beam on finishing up Trump labor rules at a breakneck pace. Late last week, I reported that the DOL today will transmit its final draft of the overtime rule to the White House regulatory review shop.

Depending on how long the back-and-forth edits take between the White House and the DOL, it’s now looking like this regulation could land before summer is over and certainly before Gene Scalia takes over the building.

Workers’ rights attorneys are now cracking their knuckles in anticipation of reading the final rule the moment it’s out so they can begin tailoring their legal arguments and find the proper plaintiffs and jurisdiction to bring a suit challenging the regulation. I’m told to expect the final rule to not make any dramatic changes from the proposal—roughly $35,000 per year will still be the salary threshold for overtime access, at least unless the White House swoops in with a major late-stage update.

If you want to preview the litigation, check out the comment letters from groups like the National Employment Law Project. The comments were critical because to bring a successful administrative lawsuit, the plaintiffs might have to prove the department’s final rule failed to address issues raised in the comment letters.

Here’s one lingering question as we wait for the rule drop: Is this surprising five-month gap from the proposed rule’s release to White House transmission a positive or negative for those who want to invalidate it in court and restore the Obama salary threshold?

The speedy process is a double-edged sword. In one sense, the Trump administration now has extra time to defend the regulation from a lawsuit, before say a Biden/Harris/Warren executive branch were to flip positions. But moving quickly could also make the department more vulnerable to a legal challenge if the rule’s drafters didn’t have time to cross their I’s and dot their T’s.

Jaclyn Diaz: Concerns about the future of work (i.e. Are robots going to take over my reporting job? Will an algorithm start writing Punching In for us?) are increasingly on the minds of workers and employers, but in my time on the Hill it seems most lawmakers have more pressing issues to tackle. Although some members of Congress have begun paying closer attention to understanding the potential risks, there remains a resistance to actually legislating. That might start to change soon.

The House Education and Labor Committee has plans to hold a series of hearings on the future of work after Congress returns Sept. 9, according to a Congressional aide. The focus will skew toward how best to support workers in the future, with a piece of the focus being on automation.

What’s interesting is that while agencies and lawmakers are reluctant to regulate AI when it comes to the workplace, there are developments happening in different areas.

The Department of Housing and Urban Development is pursuing rulemaking that would give mortgage lenders that use algorithms in their credit decisions potentially greater protection from fair lending lawsuits. The focus on algorithms is part of a broader HUD proposal to redefine how the agency would use disparate impact—which relies on statistics to identify unintentional discrimination—to enforce the Fair Housing Act.

I’m interested in seeing if there’s a possibility for a similar policy to be used in the employment space. Anyone out there in Punching In land have any thoughts on this idea?

And while we’re on the topic: Be on the look out for my upcoming story examining what one attorney is doing to try to install guardrails around the deployment of AI-based tools at work.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.com, bpenn@bloomberglaw.com, and jdiaz@bloomberglaw.com or on Twitter: @ChrisOpfer, @BenjaminPenn, and @jaclynmdiaz.

See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com