Monday morning musings for workplace watchers.
State House Round Up|SCOTUS Ruling and DACA
Chris Marr: With many state legislatures finished for the year, it’s becoming clearer not only which new workplace laws will take effect, but also which proposals won’t move forward, at least not yet.
Bills left to wither—or in some cases just wait for next year—include measures mandating salary ranges in job ads in Connecticut and Oregon, regulating California employers’ use of automated decision-making tools in hiring, and banning mandatory arbitration clauses in New York (A683).
These proposals are among the thousands each year that don’t cross the finish line in statehouses. But a few of them could signal which new employment-focused laws businesses will have to navigate in the future.
Among those that hit a roadblock, California’s proposal (AB 331) to regulate businesses’ use of AI tools will have to wait until at least 2024 to advance. The measure would be similar to a New York City law that took effect July 5, requiring audits of AI tools to ensure they aren’t relying on discriminatory stereotypes.
The California Chamber of Commerce and other business groups opposed the bill, due in large part to the litigation risk it presents employers.
“The inclusion of a private right of action for any violation of this bill is simply not feasible for such an important and growing technology,” the Chamber and its business coalition wrote in an opposition letter.
AB 331 is one of many California bills that missed a deadline to advance this year, as the legislature heads into its summer recess soon. Another is AB 747, which would expand the state’s existing ban on employee noncompetes to also block employment contracts requiring workers to repay training expenses or other fees when leaving their job.
Connecticut’s legislature also is adjourned for the year. Bills that didn’t make the cut there include proposals to require (HB 6273) salary ranges in job ads as a growing number of states do, regulate the way certain industries set their hourly workers’ schedules (HB 6859), and create minimum pay rates for rideshare drivers (SB 1180).
Likewise for Colorado, lawmakers finished their session without passing a bill (SB 98) to mandate more transparency in how rideshare and delivery app drivers are paid and another (HB 1118) setting employee scheduling standards, which supporters call a “fair workweek” law.
An Oregon bill (HB 3285) to require salary ranges in job ads also didn’t advance before end of session.
New York lawmakers left a more sweeping gig worker proposal to die in committee. A2085 would have overhauled the worker classification rules that the state uses to decide whether someone is an employee or independent contractor, along the lines of the heavily litigated California AB 5.
And last, but not least, Illinois legislators decided against a proposal (HB 2032) to impose fees on employers who pay employees so little that they qualify for food aid under the federal Supplemental Nutrition Assistance Program.
Andrew Kreighbaum: A recent Supreme Court decision rejecting a challenge to Biden immigration enforcement policies could have implications for the future of DACA and the roughly 600,000 young people granted deportation protections and work authorization through the program.
In an 8-1 decision last month in United States v. Texas, the high court held that Republican-led states didn’t have standing to challenge prosecutorial discretion used by the executive branch. That decision arrived as a federal district court judge in Texas considers the legality of the Deferred Action for Childhood Arrivals program after regulations codifying the program were issued last year. Judge Andrew Hanen heard oral arguments on the program last month.
The Biden administration as well as the Mexican-American Legal Defense and Educational Fund have indicated they plan to file briefs in the case in light of the Supreme Court ruling.
“I don’t know if DACA will survive in light of US v. Texas. I think it should because DACA is an example of deferred action,” said Angelo Paparelli, a partner at Vialto Law PLLC. “This is exactly what prosecutorial discretion means.”
Employers as well as state and local governments have warned that dismantling DACA would cost businesses billions and take away an educated workforce that the US economy could ill afford to lose. Texas and Louisiana argued the states incurred additional costs as a result of the Mayorkas memo at issue in United States v. Texas—a similar argument to the one made in the latest DACA challenge.
Hanen would have trouble getting around the Supreme Court’s decision, said Charles Kuck, managing partner at Kuck Baxter Immigration Partners LLC. “States don’t get to dictate federal enforcement policy. DACA is enforcement policy,” he said. “It’s exactly the same thing the Supreme Court just ruled on.”
Kuck said the federal government also clearly had authority to issue work permits after promulgating DACA regulations.
But Stephen Yale-Loehr, a Cornell University Law School professor, said the work permits offered through DACA could be the issue that conservative judges use to ignore the earlier Supreme Court ruling. That decision found that benefits extended to immigrants could lead to further analysis of standing in a case.
“The Supreme Court hinted in the Texas prosecutorial discretion case that they might come out the opposite way in DACA litigation because it concerns more than simply enforcement discretion; it also includes work authorization and Medicare eligibility,” he said.
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