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Fall 2023 Labor & Employment Law Update

Laws surrounding labor & employment are constantly changing and 2023 has been no exception. To learn more about the major issues and developments your company needs to address now for 2024, you're invited to join our Fall 2023 Labor & Employment Law Update. Below are the details of this webinar along with some short articles to give you a preview of what is to come.

In this issue:

Save the Date: Agenda and Presenters
Article: USDOT Approves Oral Fluid Drug Testing
Article: Unemployment Insurance Claim Rules and Procedures
Article: Benefits and Legal Risks of Using Generative AI in Hiring Offers

Save the Date: Agenda and Presenters

October 12, 2023

When: Thursday, October 12 from 9:00-11:30 am; an optional 30-minute Q&A session to follow.
Cost: Free
Registration: https://us06web.zoom.us/webinar/register/WN_QANDjYvyRt-Cz3R76NbSNw
What to Expect:
- Unemployment Insurance Matters
  - Amanda Afton Martin will explain the importance of preparing for an unemployment insurance hearing and its impact on an employer’s unemployment tax. You will learn what to expect before appearing before an Administrative Law Judge (ALJ) and why it is valuable to seek legal counsel to represent you.
- Employee Misclassification
  - Mike Blum will explore the always evolving dilemma of misclassification and what constitutes an employee or an independent contractor. Mike will look at classification on the federal vs. state level and discuss the status of new tests proposed or implemented by various agencies, including the:
    - IRS common law test,
    - the DOL’s ABC test,
    - the NLRB’s new independent contractor standard, and
    - the consequences of misclassification under the workers’ compensation law.
  - Mike will also discuss the implications improper classification has on Gig workers, which include independently employed or subcontract workers and staff agency employees. Due to the significant potential liability, being proactive about correctly classifying your employees is crucial.
- Drug Testing
  - Should you test your employees for marijuana? Mark Koerner will discuss cases involving drug testing employees along with what you should include in your policy to cover all your basics. Mark will also review the recent Department of Transportation's (DOT) final rule to amend regulations, allowing oral fluid testing for employees in the transportation industry. This development is set to streamline the drug testing process.
- Noncompete Developments
  - A topic that is on every company's mind, Karl Butterer will delve into the NLRB's recent decision to make nearly all noncompetes unlawful. This segment will also explore non-solicitation agreements, separation contracts, confidentiality clause enforcement and how it affects nonunionized workforces. Karl will also take a look at the Thryv decision and its implications in which the NLRB held that the employer violated the NLRA by unilaterally laying off six employees in violation of the statutory duty to bargain.
- Employers' Use of AI
  - Tony Dalimonte will discuss an area that is transforming how employers review and hire potential candidates, using generative artificial intelligence (AI) to streamline applicant screening. However, there are a number of potential legal dilemmas that can arise and Tony will delve into what you should discuss with your legal counsel prior to implementing generative AI software.
- Workplace Monitoring
  - Cliff Hammond will examine the scrutiny of workplace monitoring and its lawfulness under certain circumstances. What can employers keep track of? Are they allowed to keep tabs on employees' whereabouts using GPS? Tracking of keystrokes?
  - In addition, Cliff will also examine:
    - Religious discrimination and what reasonable accommodations employes can make.
    - Are non-disparagement clauses enforceable?
    - Revisit what has changed in the workplace in the wake of COVID.

USDOT Approves Oral Fluid Drug Testing

Mark T. Koerner

On May 2, 2023, the United States Department of Transportation (“DOT”) published a final rule that authorizes employers to use oral fluid drug testing as an alternative methodology to urine drug testing.

Using an individual’s saliva to test for controlled substances, oral fluid testing is directly observed by a laboratory technician, making the sample less susceptible to adulteration or tampering.

Unemployment Insurance Claim Rules and Procedures

Amanda Afton Martin

Learn the importance of preparing well for an unemployment insurance hearing and protect your unemployment tax rate!

Hearings before an administrative law judge (“ALJ”) are “de novo,” meaning from the beginning. In other words, facts are newly established by the ALJ, despite documents previously submitted to the Unemployment Insurance Agency. This is an opportunity to create a record of the facts surrounding an employment separation, arguing that the former employee should be disqualified from receiving unemployment benefits (and as a result protecting your unemployment tax rate).

You will learn how to prepare for an unemployment insurance hearing, and how to appeal an unfavorable ALJ decision. Legal representation at the ALJ hearing helps employers navigate the rules of evidence, meet the required burden of proof and establish a detailed and full record, should the case continue through the appeal process.

Amanda Afton Martin

Benefits and Legal Risks of Using Generative AI in Hiring Offers

Anthony M. Dalimonte

It seems like AI is in the news every day and being discussed everywhere. We regularly see and read about the many ways it will change and transform the nature of our lives and occupations.

There is little doubt that AI-driven tools can be of benefit and cost-savings in the human resources environment. But employers also need to be mindful of the numerous and potentially expensive legal risks associated with the use of AI in screening and evaluating job candidates.

Foster Swift Collins & Smith, PC E-Newsletters are intended for general information for our clients and friends. This newsletter highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how this information applies to any specific situation.

IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.

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