This edition of Take 5 highlights compliance with cutting-edge issues—such as pay equity, workplace violence, and artificial intelligence (“AI”)—that have a significant impact on retailers. We also provide an update on National Labor Relations Act (“NLRA”) compliance and New York City drug testing to assist you in navigating an increasingly complex legal landscape.

Watercooler (and Bathroom) Conversations Among Co-Workers About Work-Related Matters Are Not Always Protected Concerted Activity Under the NLRA

Historically, a conversation between two or more employees about working conditions or other terms or conditions of employment is deemed protected activity under the NLRA, and an employer cannot retaliate against the employees for taking part in such a conversation or for their content. On April 10, the National Labor Relations Board (“Board”) issued a decision in which it made clear that these are not absolute principles. In rejecting the findings of an administrative law judge, the Board explained that such conversations are only entitled to the NLRA’s protection when the chatter is work-related and made with the intent to insight collective action among the workforce. In Quicken Loans, Inc., 367 NLRB No. 112 (April 10, 2019), the Board held that bathroom remarks made by a mortgage banker to a co-worker complaining vociferously about the employer’s routing of a client call to him, which was overheard by a manager and involved swearing about the client, was not protected. Because the Board found that this griping was purely a matter of the complainer’s concerns and it did not have any goal of “mutual aid or protection” or seek collective action, the discharge of the co-worker was upheld.

The New Jersey Equal Pay Act: How to Assess Compliance

With the first anniversary of New Jersey’s Diane B. Allen Equal Pay Act (“Act”) approaching, now is an excellent opportunity for retailers to be reminded of the heightened awareness of employees to pay equity issues and to take steps to ensure compliance with the Act. The Act is one of the most expansive equal pay laws in the nation, with a broad definition of “protected class” and a narrow list of factors that would justify pay disparities. More information on the legal requirements of the Act can be found in our Act Now Advisory titled “New Jersey Enacts Sweeping Equal Pay Law.”

Avoiding Workplace Violence: Steps to Take Now

As incidents of workplace violence continue to make headlines, employers are increasingly aware of the potential threat of violence in the workplace and their obligation to provide workplaces that are “free from recognized hazards that are causing or are likely to cause death or serious harm,” as set forth in the Occupational Safety and Health Act’s general duty clause.

To proactively prevent and address incidents of workplace violence, employers should consider taking the following steps now:

1. Adopt a Comprehensive Workplace Violence Prevention Policy. A workplace violence prevention policy should clearly define “workplace violence” and refer to a broad range of prohibited behaviors, from verbal assaults to threats or acts of physical violence or damage to property.

2. Train Your Workforce. Conduct training sessions to disseminate the workplace violence prevention policy, and teach employees and other staff the proper channels for reporting threats or incidents of violence.

3. Document Reported Incidents and Investigate. Keep careful records of any reports of potential or actual workplace violence. Any threats or actual incidents of violence should be immediately, thoroughly, and appropriately investigated.

4. Carry Out Additional Actions, as Needed. Periodically review your reporting records to determine if there are any patterns or trends emerging that must be addressed.

New York City Bans Pre-Employment Marijuana Drug Testing

New York City recently passed a law prohibiting employers, labor organizations, and employment agencies, and all of their agents, from requiring a prospective employee to submit to a marijuana or tetrahydrocannabinols (commonly known as “THC”) drug test as a condition of employment. The law includes several exceptions and does not apply, for example, to transport-related positions, such as positions requiring a commercial driver’s license, and safety-related positions. If drug testing is required by a collective bargaining agreement, the law will not apply to such testing. Since drug testing is common in the retail industry, retailers with operations in New York City should ensure compliance with the law before it becomes effective on May 10, 2020. Retailers in New York City will need to review their drug-testing policies and procedures, and cease pre-employment testing of cannabis and THC, unless an applicable exception applies. Additionally, job postings should also be reviewed to ensure that they do not reference impermissible testing.

Artificial Intelligence for Recruitment and Selection in Retail

Companies are increasingly using AI in their recruitment and selection of employees. Usually, AI is used as a part of a third-party “digital hiring platform.” These products, explicitly or implicitly, promise to reduce or eliminate the bias of hiring managers in making selection decisions. These technologies can hold a particular appeal in retail, where there may be an inclination from a hiring manager to hire for a certain look. (Abercrombie & Fitch was infamously sued over such allegations.)

The digital hiring platforms use AI to grade applicants based on a variety of purportedly objective factors. For example, a platform may scan thousands of resumes and select applicants based on education level, work experience, or interests, or rank applicants based on their performance on an aptitude test—whatever data point(s) the platform has been trained to evaluate based on the job opening. Some even go a step further and analyze candidates’ facial expressions, eye contact, or tone of voice during video interviews. The appeal of these technologies is obvious, and they may streamline a cumbersome and expensive hiring process for retailers.

Their use, however, is not without risk. The Illinois Legislature just passed a bill, likely to be enacted into law, entitled the “Artificial Intelligence Video Interview Act.” This law imposes new notice and consent requirements upon all employers hiring for positions in Illinois. There are other risks and considerations as well, including the potential for hidden bias, disparate impact, disability accommodation, and data privacy. Companies using digital hiring platforms must take steps to mitigate against these risks, including conducting due diligence on the products, or else they may be susceptible to a lawsuit.