December 14, 2022
Volume XII, Number 348
December 14, 2022
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.
Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…by: Lynn L.
Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.Dodds and Robert S.
Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…
by: Paul V.Kelly
– U.S.
Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.Phillips and Christopher M.
Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…
by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…
by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.
Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…
by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…by: David A.Lopez-Kurtz and Alex J.
Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.
Carrillo and Ludmilla L.Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…
by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…by: J.
Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.
Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…by: Gregory Husisian and John E.Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…
by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…by: Adam C.Abrahms and Steven M.Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…
by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…
by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Considering Using Biometric Information? Adopt a Biometric Policy Now by: Mike H.Holland and Patrick J.McMahon
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– Fa-La-La Laws: Employer Liability Issues for Office Holiday Parties by: Katharine O.Beattie and Victoria Stockton Breese
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.
Berhe
– BETO Postpones December 13, 2022, Webinar on SAF Grand Challenge…by: Lynn L.Bergeson and Carla N.Hutton
– New Year Brings New Laws for Illinois Employers by: Mikela T.Sutrina and Katherine H.Oblak
– Decision in U.S.v.Holland by: Gabriel L.
Imperato
– New Jersey Senate Labor Committee WARNs Effective Date of Amendments…
by: Mark Diana and Brandon R.Sher
– Crypto Punked? Industry Bankruptcies Rattle Markets and Expose Major…by: George P.Angelich and Dan Jasnow
– Global M&A Trends: A Wider Slowdown but Still on Track to Surpass…by: Louis Lehot and Brandee L.Diamond
– Top Five Labor Law Developments for November 2022 by: Jonathan J.Spitz and Richard F.
Vitarelli
– “Cold-Pressed Juice” Lawsuit Permanently Dismissed by: Food and Drug Law at Keller and Heckman
– December 2022 AFS Privacy Report: Pandora’s Virtual Try-On Tool…by: Eva J.Pulliam and D.Reed Freeman Jr.
– USPTO Releases New Guidelines Shortening the Response Deadline in…
by: Luna M.Samman
– ‘No Exit’: SEC Sanctions Investment Adviser for Impeding…by: Peter D.Hutcheon
– TradeTalk China: December 2 – December 9, 2022 by: Pablo E.
Carrillo and Ludmilla L.Kasulke
– $10.3 Million in Grants Awarded to Improve the Health of Long Island…by: EPA
– RE-STRUC: Tax Changes as of 2023 by: Thomas van der Vliet and Louisa van Isselmuden
– Episode 23: The Emerging Investigatory Focus on Telehealth: What You…by: Nathaniel M.Lacktman and Maureen M.
Stewart
– The CAC Assessment Collection – Part 2: What Must Be Done Before…by: Amigo L.Xie and Dan Wu
– CFIUS Clearance: GIC Private Limited and STORE Capital Corporation by: International Trade Practice at Squire Patton Boggs
– Here We Go Again: Lesser Prairie-Chicken Re-Listed Under the…
by: Karma B.Brown and Linda Trees
– What’s more common: opt-in, opt-out, or notice cookie banners? by: David A.
Zetoony
– An Unstoppable Force Meets an Immovable Object: Microsoft to Fight…by: Jonathan Rubin
– Who Qualifies As An Expert Witness? by: Keith Paul Bishop
December 11, 2022
– Ex-Wall Street Trader Convicted of Fraud in Precious Metals Spoofing…by: United States Department of Justice (DOJ)
– Former Navy Sailor Sentenced for Producing Images of Child Sexual…
by: United States Department of Justice (DOJ)
– USCIS Updates Policy to Automatically Extend Green Cards for…by: U.S.
Customs and Border Protection Department of Homeland Security
– Mauritanian Terrorist Charged with Death of American Citizen and with…
by: United States Department of Justice (DOJ)
NYC Delays Enforcement of Automated Employment Decision Tools Law to April 15, 2023
On December 12, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) announced that it would delay the date of its enforcement of the New York City Automated Employment Decision Tools Law (“AEDTL”) from January 1, 2023 to April 15, 2023.The change is due to the high volume of public comments the DCWP received in connection with its proposed regulations implementing the AEDTL, along with the DCWP’s plans to hold a second public hearing before finalizing those regulations.
By way of background, the AEDTL restricts employers’ ability to use “automated employment decision tools” in hiring and promotion decisions within New York City.
The AEDTL defines “automated employment decision tool” as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.” The term does not encompass “a tool that does not automate, support, substantially assist or replace discretionary decision-making process and that does not materially impact natural persons,” such as junk email filters, databases, or spreadsheets.
Employers are prohibited from using automated employment decision tools in connection with hiring and promotion decisions within New York City unless: (i) the tool has been the subject of a bias audit conducted within the previous year; and (ii) the employer has published a summary of the results of the tool’s most recent bias audit, as well as the distribution date of the tool to which such audit applies, on its publicly-available website.A “bias audit” is defined as an “impartial evaluation by an independent auditor” that must test whether application of the tool’s criteria results in a disparate impact based on sex, race, or ethnicity.
The AEDTL also imposes significant notice requirements.Employers who use automated employment decision tools in employment decisions must disclose the following information at least ten business days before the tool is used: (i) the fact that an automated employment decision tool will be used in connection with the assessment or evaluation of any candidate who lives in New York City; and (ii) the job qualifications and characteristics that the automated employment decision tool will use in assessing the candidate.Employers must also provide the following information within thirty days of a written request: (i) the type of data collected for the automated employment decision tool; (ii) the source of the data; and (iii) the employer’s data retention policy.Finally, employers must advise candidates or employees with information on how to request an alternative selection process or accommodation.
The consequences for violating the AEDTL can be steep.Employers who violate the AEDTL may be subject to civil fines of $500 for a first violation (and each additional violation occurring on the same day as the first violation), and $500 – $1,500 for subsequent violations.
Each day on which an automated employment decision tool is used in violation of the law will give rise to a separate violation, as will any failure to provide notice required under the AEDTL.The AEDTL neither expressly permits nor prohibits a private right of action, but states that it shall not be construed to “limit any right of any candidate or employee for an employment decision to bring a civil action in any court of competent jurisdiction.”
On September 23, 2022, the DCWP posted a set of proposed regulations implementing the AEDTL, and held a public hearing regarding them on November 4, 2022.The public hearing attracted hundreds of attendees, and the DCWP received a high volume of comments requesting clarification regarding the AEDTL and the regulations that DCWP proposed.
To provide sufficient time to process those comments, hold a second public hearing, and presumably issue new regulations, the DCWP will delay any enforcement measures for the AEDTL until April 15, 2023.
Although this news may come as a relief for employers who use automated employment decision tools, New York employers should continue to consider the AEDTL’s requirements (including the terms of any future final regulations) and plan for compliance.We will continue to monitor any new developments and provide updates as they become available..