Is Artificial Intelligence Sexist and Racist?


Last year, Amazon scrapped its machine-learning algorithm because it discovered it had a major problem—the artificial intelligence didn’t like women. The machine-based learning tool was designed to analyze resumes and compare potential applicants to Amazon’s current work force. The algorithm was designed to take 100 resumes and filter out the top five applicants.

The problem was that there is a pre-existing gender gap in software developer and other technical posts. Therefore, when the artificial intelligence tool analyzed the patterns in Amazon’s hiring practices over the prior 10-year period, it taught itself to favor men over women. Amazon ultimately disbanded the tool.

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“Stand-Alone” REALLY Does Mean Stand-Alone - Ninth Circuit Court of Appeals Interprets the FCRA


On January 29, 2019, the U.S Court of Appeals for the Ninth Circuit (covering a number of states and territories bordering the Pacific Ocean) issued a far-reaching opinion that will likely impact the hiring process of prospective employers who conduct background checks on applicants.

In the case at issue, Desiree Gilberg (Gilberg) brought a class action suit against prospective employers (collectively, “CheckSmart”) alleging violations of the Fair Credit Reporting Act (the FCRA) and California’s Investigative Consumer Reporting Agencies Act (the CICRAA). The FCRA requires employers who use consumer reports as part of the hiring process to provide an applicant with a “clear and conspicuous” disclosure that the consumer report will be used “in a document that consists solely of the disclosure.” 15 U.S.C. 1681b(b)(2)(A)(i) (emphasis added). The CICRAA has similar requirements. See Cal. Civ. Code §§1785.20(5)(a) & 1786.16(a)(2)(B).

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Temporary Workers—An OSHA Perspective


The Occupational Safety and Health Administration (OSHA) has previously stated that temporary workers are at an “increased risk of work-related injury and illness.” Among other reasons, OSHA has expressed concerns that temporary workers are sometimes not included in employers’ usual safety training and assessments. Because of that stated vulnerability, OSHA often focuses on temporary worker status in accident and injury investigations as part of its Temporary Worker Initiative and its Multi-Employer Citation Policy. This means that staffing agencies and employers that use staffing agencies to meet their personnel needs (i.e., “host employers”) need to be aware of best practices related to temporary worker safety and be prepared for the issue if OSHA comes knocking.

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Deferred Compensation Plans and FICA Taxes: A Valentine’s Day Match or Disaster?


While February is usually the month for valentines and candy conversation hearts, I hope you will use this month to give a little love and attention to one of the often overlooked “other” taxes applied to payments from nonqualified deferred compensation plans (NQDC Plans)—FICA taxes! Companies commonly fail to implement the unique FICA tax rules applied to NQDC Plans and these special rules can create confusion for participating executives. This can result in the company’s potential exposure to IRS penalties, higher tax liabilities for the company and the employees, and unhappy employees. Confirming proper FICA tax treatment for your NQDC Plans is time well spent.

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Class Action Waivers: Silence May NOT Be Golden


Since when does silence in a contract speak louder than words? The United States Supreme Court will soon answer this question in deciding whether an arbitration agreement between an employer and its employees can authorize a class action arbitration proceeding when the agreement is silent as to the issue. Employees with arbitration agreements that contain only general language — agreeing to arbitration of employment-related claims that arise out of the individual employee’s employment with the employer — will be watching this decision carefully to see whether the Court finds that employers, through silence (without a word in the agreement that authorizes “class” or collective actions,” or who can be a “class representative” for a group of employees who claim to have been harmed), inadvertently agree to arbitrate not only an employee’s individual claims but that of a class. So . . . how did this issue arise when the Court’s holding and reasoning in a 2010 decision, Stolt-Nielsen, S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662 (2010), appears to hold otherwise? Well, basically by the 9th Circuit Court of Appeals parsing the definition of “silence.” In a 2017 decision in Varela v. Lamps Plus, Inc., the Ninth Circuit affirmed the district court’s order compelling a class-wide arbitration based on a silent agreement by explaining that the Supreme Court’s decision in Stolt-Nielsen “accepted the parties’ stipulation” that silence meant that no agreement has been reached. Therefore, the Court concluded that the fact that an arbitration clause “does not expressly refer to class arbitration is not the ‘silence’ contemplated in Stolt-Nielsen.”

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