Business and Education Schedule · Virtual Meeting August 2, 2020 Business and Education Schedule 60 Appellatemin. 11:00 a.m. – ... Emerging Technologies and Sciences (GETS) conference
155
The 47 th Annual Meeting of the National Conference of Appellate Court Clerks Virtual Meeting August 2, 2020 Business and Education Schedule 60 min. 11:00 a.m. – 12:30 p.m. Roll Call of the States, Conference Welcome and Business Meeting Laura Roy, President, National Conference of Appellate Court Clerks; Clerk, Missouri Court of Appeals – Eastern District 12:30 p.m. – 12:45 p.m. Break 90 min. 12:45 p.m.– 2::15 p.m. Courts of the Future – A futuristic look at the judicial system which includes computers deciding cases, virtual trials, and greater use of artificial intelligence Opperman Speaker, Gary Marchant, Regents’ Professor and Lincoln Professor of Emerging Technologies, Law & Ethics, and Faculty Director of the Center for Law, Science & Innovation, at the Sandra Day O’Connor College of Law, Arizona State University 2:15 p.m. – 2:20 p.m. Break 60 Min. 2:20 p.m. – 3:20p.m. Palm Beach County Robots - Use of Artificial Intelligence Document Review and ethical ramifications of its use. Cynthia M. Guerra, Clerk and Comptroller, Palm Beach County, FL and Tom, Hall. J.D., TLH Consulting Group 3:20 p.m. – 3:30 p.m. Break 60 Min 3:30 p.m. – 4:30 p.m. Labor & Employment Law Update - Pandemics, Marijuana, and Trends … Oh, My! Chris Weller, JD. Educational Session Business Meeting
The 47th Annual Meeting of the National Conference of Appellate Court Clerks
Virtual Meeting August 2 2020
Business and Education Schedule
60 min 1100 am ndash
1230 pm
Roll Call of the States Conference Welcome and Business Meeting
Laura Roy President National Conference of Appellate Court Clerks Clerk Missouri Court of Appeals ndash Eastern District
1230 pm ndash
1245 pm Break
90 min 1245 pmndash 215 pm
Courts of the Future ndash A futuristic look at the judicial system which includes computers deciding cases virtual trials and greater use of artificial intelligence
Opperman Speaker
Gary Marchant Regentsrsquo Professor and Lincoln Professor of Emerging Technologies Law amp Ethics and Faculty Director of the Center for Law Science amp Innovation at the Sandra Day OrsquoConnor College of Law Arizona State University
215 pm ndash 220 pm Break
60 Min 220 pm ndash 320pm
Palm Beach County Robots - Use of Artificial Intelligence Document Review and ethical ramifications of its use
Cynthia M Guerra Clerk and Comptroller Palm Beach County FL and Tom Hall JD TLH Consulting Group
320 pm ndash 330 pm Break
60 Min 330 pm ndash 430 pm
Labor amp Employment Law Update - Pandemics Marijuana and Trends hellip Oh My
Chris Weller JD
Educational
Session
Business Meeting
The 47th Annual Meeting of the National Conference of Appellate Court Clerks
Virtual Education Sessions August 2 2020
1 Courts of the Future
Sunday August 2 2020 1245 pm ndash 215 pm
2 Palm Beach County Robots Sunday August 2 2020 220 pm ndash 320 pm
3 Labor amp Employment Law Update Sunday August 2 2020 330 pm ndash 430pm
Courts of the Future 47thAnnual
Meeting of the
National
Conference of
Appellate Court
Clerks
August 2 2020
Gary E Marchant JD PhD Garymarchantasuedu
Gary Marchant serves as the Regentsrsquo Professor and Lincoln Professor of Emerging
Technologies Law amp Ethics and Faculty Director of the Center for Law Science amp Innovation
at the Sandra Day OrsquoConnor College of Law Arizona State University (ASU) He is also a
Distinguished Sustainability Scientist in the Global Institute of Sustainability and Professor in
the School of Life Sciences at ASU
He teaches researches and speaks about the governance of a variety of emerging technologies
including biotechnology genomics neuroscience nanotechnology artificial intelligence and
blockchain Prior to joining the College faculty in 1999 Professor Marchant was a partner at the
Washington DC office of Kirkland amp Ellis where his practice focused on environmental and
administrative law He received his JD from Harvard Law School where he was awarded the
Fay Diploma (awarded to top graduating student at Harvard Law School) He also has a PhD in
genetics from the University of British Columbia and a Masters of Public Policy from the
Kennedy School of Government
Professor Marchant frequently lectures about the intersection of law and science at national and
international conferences including speaking at over 75 judicial conferences He has authored
more than 200 articles and book chapters on various issues relating to emerging technologies
Among other activities he has served on six National Academy of Sciences committees has
been the principal investigator on several major grants and has organized over 50 academic
conferences and workshops on law and science issues including the annual Governance of
Emerging Technologies and Sciences (GETS) conference held every May in Phoenix He is
currently the PI on a grant looking at the use of ldquosoft lawrdquo to govern artificial intelligence He
is an elected lifetime member of the American Law Institute and Fellow of the Association for
the Advancement of Science
Courts of the Future
47th Annual Meeting of the National Conference of Appellate Court Clerks
August 2 2020
Gary E Marchant JD PhDGarymarchantasuedu
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
The 47th Annual Meeting of the National Conference of Appellate Court Clerks
Virtual Education Sessions August 2 2020
1 Courts of the Future
Sunday August 2 2020 1245 pm ndash 215 pm
2 Palm Beach County Robots Sunday August 2 2020 220 pm ndash 320 pm
3 Labor amp Employment Law Update Sunday August 2 2020 330 pm ndash 430pm
Courts of the Future 47thAnnual
Meeting of the
National
Conference of
Appellate Court
Clerks
August 2 2020
Gary E Marchant JD PhD Garymarchantasuedu
Gary Marchant serves as the Regentsrsquo Professor and Lincoln Professor of Emerging
Technologies Law amp Ethics and Faculty Director of the Center for Law Science amp Innovation
at the Sandra Day OrsquoConnor College of Law Arizona State University (ASU) He is also a
Distinguished Sustainability Scientist in the Global Institute of Sustainability and Professor in
the School of Life Sciences at ASU
He teaches researches and speaks about the governance of a variety of emerging technologies
including biotechnology genomics neuroscience nanotechnology artificial intelligence and
blockchain Prior to joining the College faculty in 1999 Professor Marchant was a partner at the
Washington DC office of Kirkland amp Ellis where his practice focused on environmental and
administrative law He received his JD from Harvard Law School where he was awarded the
Fay Diploma (awarded to top graduating student at Harvard Law School) He also has a PhD in
genetics from the University of British Columbia and a Masters of Public Policy from the
Kennedy School of Government
Professor Marchant frequently lectures about the intersection of law and science at national and
international conferences including speaking at over 75 judicial conferences He has authored
more than 200 articles and book chapters on various issues relating to emerging technologies
Among other activities he has served on six National Academy of Sciences committees has
been the principal investigator on several major grants and has organized over 50 academic
conferences and workshops on law and science issues including the annual Governance of
Emerging Technologies and Sciences (GETS) conference held every May in Phoenix He is
currently the PI on a grant looking at the use of ldquosoft lawrdquo to govern artificial intelligence He
is an elected lifetime member of the American Law Institute and Fellow of the Association for
the Advancement of Science
Courts of the Future
47th Annual Meeting of the National Conference of Appellate Court Clerks
August 2 2020
Gary E Marchant JD PhDGarymarchantasuedu
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Courts of the Future 47thAnnual
Meeting of the
National
Conference of
Appellate Court
Clerks
August 2 2020
Gary E Marchant JD PhD Garymarchantasuedu
Gary Marchant serves as the Regentsrsquo Professor and Lincoln Professor of Emerging
Technologies Law amp Ethics and Faculty Director of the Center for Law Science amp Innovation
at the Sandra Day OrsquoConnor College of Law Arizona State University (ASU) He is also a
Distinguished Sustainability Scientist in the Global Institute of Sustainability and Professor in
the School of Life Sciences at ASU
He teaches researches and speaks about the governance of a variety of emerging technologies
including biotechnology genomics neuroscience nanotechnology artificial intelligence and
blockchain Prior to joining the College faculty in 1999 Professor Marchant was a partner at the
Washington DC office of Kirkland amp Ellis where his practice focused on environmental and
administrative law He received his JD from Harvard Law School where he was awarded the
Fay Diploma (awarded to top graduating student at Harvard Law School) He also has a PhD in
genetics from the University of British Columbia and a Masters of Public Policy from the
Kennedy School of Government
Professor Marchant frequently lectures about the intersection of law and science at national and
international conferences including speaking at over 75 judicial conferences He has authored
more than 200 articles and book chapters on various issues relating to emerging technologies
Among other activities he has served on six National Academy of Sciences committees has
been the principal investigator on several major grants and has organized over 50 academic
conferences and workshops on law and science issues including the annual Governance of
Emerging Technologies and Sciences (GETS) conference held every May in Phoenix He is
currently the PI on a grant looking at the use of ldquosoft lawrdquo to govern artificial intelligence He
is an elected lifetime member of the American Law Institute and Fellow of the Association for
the Advancement of Science
Courts of the Future
47th Annual Meeting of the National Conference of Appellate Court Clerks
August 2 2020
Gary E Marchant JD PhDGarymarchantasuedu
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Gary Marchant serves as the Regentsrsquo Professor and Lincoln Professor of Emerging
Technologies Law amp Ethics and Faculty Director of the Center for Law Science amp Innovation
at the Sandra Day OrsquoConnor College of Law Arizona State University (ASU) He is also a
Distinguished Sustainability Scientist in the Global Institute of Sustainability and Professor in
the School of Life Sciences at ASU
He teaches researches and speaks about the governance of a variety of emerging technologies
including biotechnology genomics neuroscience nanotechnology artificial intelligence and
blockchain Prior to joining the College faculty in 1999 Professor Marchant was a partner at the
Washington DC office of Kirkland amp Ellis where his practice focused on environmental and
administrative law He received his JD from Harvard Law School where he was awarded the
Fay Diploma (awarded to top graduating student at Harvard Law School) He also has a PhD in
genetics from the University of British Columbia and a Masters of Public Policy from the
Kennedy School of Government
Professor Marchant frequently lectures about the intersection of law and science at national and
international conferences including speaking at over 75 judicial conferences He has authored
more than 200 articles and book chapters on various issues relating to emerging technologies
Among other activities he has served on six National Academy of Sciences committees has
been the principal investigator on several major grants and has organized over 50 academic
conferences and workshops on law and science issues including the annual Governance of
Emerging Technologies and Sciences (GETS) conference held every May in Phoenix He is
currently the PI on a grant looking at the use of ldquosoft lawrdquo to govern artificial intelligence He
is an elected lifetime member of the American Law Institute and Fellow of the Association for
the Advancement of Science
Courts of the Future
47th Annual Meeting of the National Conference of Appellate Court Clerks
August 2 2020
Gary E Marchant JD PhDGarymarchantasuedu
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Courts of the Future
47th Annual Meeting of the National Conference of Appellate Court Clerks
August 2 2020
Gary E Marchant JD PhDGarymarchantasuedu
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Changeldquo[P]oliticians ndash and judges for that matter ndashshould be wary of the assumption that the future will be little more than an extension of things as they arerdquo
- from Jeffery Rosen Roberts v The Future NY Times Aug 28 2005
Chief Justice Roberts
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Technology Revolutions of the 20th Century
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
1991 Radio Shack Ad
httpwwwtrendingbuffalocom
To buy all these products would cost $305482 in
1991 dollars
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Exponential Change
ldquoAn analysis of the history of technology shows that technological change is exponential contrary to the common-sense lsquointuitive linearrsquo view So we wonrsquot experience 100 years of progress in the 21st century ndashit will be more like 20000 years of progress (at todayrsquos rate)rdquo ndash Ray Kurzweil
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
City of Ontario v Quon (2010)(Justice Kennedy) ldquoThe Court must proceed with care when considering the
whole concept of privacy expectations in communications made on electronic equipment owned by a government employer The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clearhellip Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence and extent of privacy expectations enjoyed by employees when using employer-provided communication deviceshellip A broad holding concerning employeesrsquo privacy expectations visndashagrave-vis employer-provided technological equipment might have implications for future cases that cannot be predicted It is preferable to dispose of this case on narrower groundsrdquo
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
The Future of CourtsOutline
I Types of Cases Claims amp Defenses
II Types of EvidenceIII Changes to the Courtroom
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
I Types of Cases Claims amp Defenses
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Genetic Predisposition To Violence
0
10
20
30
40
50
60
70
80
Low MAOA High MAOA
No Maltreatment
ProbableMaltreatmentSevere Maltreatment
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Bradley Waldroup Case (Tennessee 2010) Waldroup murdered his estranged wifersquos
friend and tried to also murder his wife Charged with felony murder a capital
offense Tested positive for MAOA high risk gene
variant suffered from early childhood abuse
Jury convicted him of voluntary manslaughter rather than felony murder
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Drones
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
In re Shaun Malone Sonoma County Commission (2007)
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Driverless Cars
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Artificial IntelligenceMachine Learning
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
AI Machine LearningHuman Computer
Programming
Machine mechanically implements human-made code
Bad outcomes are attributable to bad code by human programmer
Human programmer can explain why machine did what it did
Machine Learning
Humans provide data and specify overall goal for machine
Machine self-learns and adapts its approach to maximize specified goal
Limited explanation for why machine did what it did
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
httpswwwyo
utubecomwat
chv=jU-
cori12KU
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
SourceMedium
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
ldquoIs This Man Cheating on His Wiferdquo WSJ Aug 10 2007
The woman hes legally wed to is not amused Its really devastating says Sue Hoogestraat hellip You try to talk to someone or bring them a drink and theyll be having sex with a cartoon
While his wife Sue watches television in the living room Mr Hoogestraat chats online with what appears on the screen to be a tall slim redhead Hes never met the woman outside of the computer world of Second Life hellip Hes never so much as spoken to her on the telephone But their relationship has taken on curiously real dimensions They own two dogs pay a mortgage together and spend hours shopping at the mall and taking long motorcycle rides
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Voyeur Dorm (2001) Tampa Bay zoning ordinance prohibits adult
entertainment businesses in residential areas Voyeur Dorm is a house in an upscale Tampa
residential area that contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours per day to thousands of subscribers
11th Circuit held that the company did not offer adult entertainment in Tampa but rather are offered in cyberspace and is therefore not subject to the Tampa ordinance
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Types of Evidence
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
New Types of Evidence
Digital Discovery Computers Smart phones and
devices Social Media Genomics Microbes GPSLocation Data Drones
Virtual Worlds
Internet of Things
Data Analytics
Wearables
Brain Scans
Biometrics
Artificial Intelligence
Virtual Reality
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Duty of Technological Competence
Attorney failed to produce an accurate spreadsheet of computer database entries
Attorneyrsquos defense ldquoI have to confess to this Court I am not computer literate I have not found presence in the cybernetic revolution I need a secretary to help me turn on the computer This was out of my bailiwickrdquo
Court ldquoProfessed technological incompetence is not an excuse helliprdquo James v National Financial LLC 2014 WL 6845560
(Dec 5 2014 Ct Chanc DE)
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
GeneticsIdentificationFidelity National Title
In small business dispute one party and its lawyers received threatening anonymous letters
They suspected owner of other company but he denied it
They deposed owner in their lawyerrsquos office clerk collected his used drinking glass
DNA obtained from drinking glass matched DNA from saliva on envelopes
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Anesthetist infected at
least 275 people (4
deaths) by skimming
morphine by injecting
himself before patient
sentenced to 1933 yrs in
jail after DNA proved
source
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Dog Poop Detectives
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Epigenetics
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Brain Scanning Potential legal applications
include Lie detection Terrorist identification Latent racial animus Competency Propensity for violence Recidivism risk Pain Drug and alcohol use Awareness in vegetative
state
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Brain Scanning Cases in US Courts
Source Gaudet amp Marchant Drake L J (2016)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
GPS Evidence
Police tracking of suspect location GPS device Cell phone
Digital stalkers Divorce attorney tracking of spouses Monitoring of employees Sex offenders Bank robber Speed limit enforcementdefense GPS cameras (ldquogeotaggingrdquo)
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Biometrics
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Biased algorithm leads to
arrest of an innocent person
for a crime he did not commit
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
ldquoThese devices are especially helpful in motor vehicle bicycle and pedestrian crash cases Whether on the users wrist bike or stroller you can download or calculate variables such as speed distance angles and degree of impact Without witnesses or corroborating evidence these devices can show your clients biking jogging or walking speed as well as the precise point of impact and the momentum of the crashrdquo
Trial Aug 2018
3D Printing
For the Defense Oct 2016
Digital Fabrication
Deep Fakes
Changes to the Courtroom
Technology in Courts
Online Dispute Resolution
AI and the Court Systems Some Early Examples Automatic scanning and docketing of court
filings Facial recognition log-in to court computer
systems Chatbots for public inquiries Juror hotline Identify ldquored flagsrdquo in guardianship
conservatorship cases Triage cases for automated case management
Source NCSC
Legal Chat Bots
BiggerLawFirmcom
Vergecom
Replacement of Legal Jobs by Artificial Intelligence by 2030
Lawyers 35Judicial Law clerks 410Court reporters 510Administrative Law Judges 640Paralegals 940
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
ldquoOur agencyrsquos ability to analyze the blockchain and de-anonymize bitcoin transactions allowed for the identification of hundreds of predators around the worldrdquo
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
60 Minutes ndash April 22 2018
Brain-Machine Interfaces
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
httpswwwravellawcomjudges
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Q ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo
CJ Roberts ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
NY Times May 1 2017
Chief Justice Roberts
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
AI-powered court opened in Hangzhou in 2017 and has handled more than 3 million
case human judge in the loop although most of proceedings handled by AI system
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Beijing Internet Court has decided tens of thousand of cases since 2018
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Conclusion
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Conclusion Advice from ldquoThe Great Onerdquo
ldquoI skate to where the puck is going to be not where it has beenrdquo
Wayne Gretzky
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
And Finally hellip
Donrsquot be afraid hellip hellip we humans are still in control
hellip for at least a while yet
httpswwwyoutubecomwatchv=VqwL7GnxiI0
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
RoboLaw
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
2
RoboLawComing soon to your courtroomBy Gary E Marchant
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
3
AI in Legal Practice and Court Operations
AI as Evidence
Legal Claims Against AI Applications
Recently US Supreme Court Chief Justice John Roberts was asked ldquoCan you foresee a day when smart machines driven with artificial intelligences will assist with courtroom fact-finding or more controversially even judicial decision-makingrdquo The Chief Justice replied ldquoItrsquos a day thatrsquos here and itrsquos putting a significant strain on how the judiciary goes about doing thingsrdquo
(Gary Marchant is a past speaker at the Pennsylvania State Trial Judges Conference where he spoke about how AI is being used in the legal industry)
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Cindy Guerra serves as Chief Operations Officer of Courts and
Official Records and Acting General Counsel for the Clerk amp
Comptroller of Palm Beach County Florida She oversees a staff of
450 deputy clerks who process over 5 million documents every year
Cindy has focused her attention on successfully transforming the
Clerkrsquos office into a technology driven operation Her team is the first
in the country to use cutting edge AI and Robotic technology to
process court documents
Cindy earned her Bachelorrsquos Degree from American University in
Washington DC and a Juris Doctor from Nova Law School in Davie
Florida
Cindy came to the Clerkrsquos office in January 2012 from the Florida
Attorney Generalrsquos Office where she served as Deputy Attorney
General for South Florida Cindy has been an attorney in the State of
Florida for 29 years
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Tom Hall is Of Counsel with Bishop amp Mills based in the firmrsquos Tallahassee office although he now works almost exclusively from his home office in Babcock Ranch Florida He practices appellate law exclusively and has appeared in all six of Floridarsquos appellate courts Before returning to private practice Tom was Clerk of Court of the Florida Supreme Court for 13 years and Chief Staff Attorney at the First District Court Appeal for 10 years Tom is member of the Rules Of Judicial Administration Committee of The Florida Bar and immediate past chair of the Appellate Court Rules Committee of The Florida Bar He is a retired member of NCACC Tom is a former President of NCACC and has hosted the conference twice ndash once in Florida and once as co-host with Marilyn May in Seattle Tom has taught at the conference a number of times as well has other national conferences such as the E-Court Conference He is also the recipient of NCACCrsquos JO Sentell award Tom is president of TLH Consulting Group LLC and consults with entities doing business with Floridarsquos Court system He provides advice on a wide variety of issues including Floridarsquos Efiling Portal and consultation about the rules process of The Florida Bar and individual rule proposals for every area of procedure
MYPALMBEACHCLERKCOM | CLERKPBC
AI Automation
Traditional E-Filing ndash Palm Beach
iClassify and LBX
LBX(learn by example)
RPA(robotic processing automation)
Automated E-Filing (AI + Bots)
Meet our Robots
E-Filed Documents for we 7252020
3414434395
Total Documents for July 19 2020 -July 25 2020 = 68539
Paper Docs E-Filed Docs
1032534395
Percentage of E-Filings Automated
Automated E-Filing 3001
Civil vs Criminal E-Filing Totals
E-Filing Non-Automated
E-Filing Automated Total E-Filing Paper Filings Total Filings Percent E-Filing
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
Palm Beach currently has 91 docket codes setup for automation
Each robot has the capacity to process the work of approximately 4 FTEs
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Challenges
Same as when rolling out any new systemprocess
Implementation of new releasessoftware updates ndash fitting these in with other software releasesupdates
Paper filingsOriginal document requirements in Criminal
Heavy up-front investment of time
Differences in docketing rules based on court and case types
Confidential filings
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Expanding AI ndash Whatrsquos new and whatrsquos next
Emailing as per local procedureReports for further actionsE-Filings with feesOfficial Records indexingCase initiationUse of native documents to help OCRAutomation of QA processesProcessing of all docketing including scanned paper documentsAdding attorneys to parties on the case
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
Labor amp Employment Law in 2020 Chris Weller
Pandemics Marijuana and Trends hellip Oh My
Chris Weller was admitted to the Alabama State Bar in 1987 He received his BA in Political Science from Furman University in 1984 and a JD cum laude from Cumberland School of Law in 1987 where he served as the Casenote Editor of the Cumberland Law Review Chris is an author and frequent speaker on employment law trial practice and professional responsibility He has been recognized by Best Lawyers for his Labor and Employment Litigation and Appellate practice areas Chris has been practicing labor and employment law for more than 25 years and has successfully defended numerous clients in a wide range of lawsuits involving sex race age and wage discrimination Chris has represented the State of Alabama in three large employment class action cases successfully defeating class certification in one case and decertifying an existing class in another Chris also has successfully defended and prosecuted wage and hour claims non-compete agreement claims fair housing claims and ADA accessibility claims In addition to his labor and employment practice Chris serves as counsel for the Alabama House Republican Conference He successfully defended several challenges to the Alabama Accountability Act of 2013 which established an innovative tax credit program to allow students in chronically failing public schools to attend other schools Chris also has provided campaign advice to numerous state and local candidates and is the author of the Alabama Chapter of Westrsquos annual publication of Lobbying PACs and Campaign Finance ndash 50 State Handbook Chris is married to Julia Weller the first female Clerk of the Supreme Court of Alabama Chris and Julie have two children ndash Florence and Christopher Jr When not practicing law Chris is an avid gardener runner and backpacker His bucket list includes backpacking in all the major National Parks in the United States
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
PANDEMICS MARIJUANA amp
TRENDShellip OH MY Labor amp Employment Law in 2020
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
PRESENTED BYCHRIS WELLER
CAPELL amp HOWARD PC150 SOUTH PERRY STREETMONTGOMERY AL 36104
EMAIL CHRISWELLERCHLAWCOMTEL 334-241-8066
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
TOPIC 1 COMING ATTRACTIONS
EEOC TRENDS SALARY HISTORY BANS EXPANSION OF LEAVE
AND MORE
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
IN 2019 EEOC CHARGES FELL FOR THE THIRD STRAIGHT YEAR TO 72675 (DOWN 3743 FROM 2018MAY BE TIED TO GOOD ECONOMY)
IN 2019 SEXUAL HARASSMENT CHARGES FELL 12 BUT THERE HAS BEEN A 13 INCREASE IN SEXUAL HARASSMENT COMPLAINTS IN THE WAKE OF THE METOO MOVEMENT
IN 2019 EMPLOYERS PAID OUT A RECORD $682 MILLION TO THOSE ALLEGING SEXUAL HARASSMENT VIOLATIONS THROUGH THE EEOC SHATTERING THE ALL-TIME RECORD BY OVER $10 MILLION
SO THE TREND IS STILL UPWARD AND THE METOO MOVEMENT CONTINUES TO BE A MAJOR INFLUENCE ON WORKPLACES ACROSS THE COUNTRY
EEOC TRENDS
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
TOP 5 EEOC CHARGE CATEGORIES IN 2019
- RETALIATION 39110 (538 OF ALL EEOC CHARGES FILED)- DISABILITY 24238 (334)- RACE 23976 (330)- SEX 23532 (324)- AGE 15573 (214)
INCREASE IN SUCCESSFUL CLASS ACTIONS
- IN 2019 COURT CERTIFIED CLASS ACTIONS IN 64 OF THE EMPLOYMENT CLASS ACTIONS FILED
- THE METOO MOVEMENT CONTINUES TO FUEL EMPLOYMENT CLASS LITIGATION
- OF THE EEOCrsquoS 2019 SEX DISCRIMINATION LAWSUIT FILINGS 28 INCLUDED CLAIMS OF SEXUAL HARASSMENT AND 57 OF 84 TITLE VII LAWSUITS WERE BASED ON GENDER DISCRIMINATION ALLEGATIONS
EEOC TRENDS
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
SALARY HISTORY BANS WHICH PROHIBIT RECRUITERS FROM ASKING CANDIDATES ABOUT PAST COMPENSATION HAVE BEEN PASSED IN 17 STATES AND 20 LOCALITIES
THE GOAL OF SALARY HISTORY BANS IS TO BASE COMPENSATION ON WORK PERFORMED AND NOT ON PREVIOUS PAY THAT MAY REFLECT AND PERPETUATE DISCRIMINATION
- NEW JERSEYrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 26
- NEW YORKrsquoS NEW SALARY BAN LAW WENT INTO EFFECT ON JANUARY 6 (PROHIBITS ASKING OR EVEN RESEARCHING AN APPLICANTrsquoS SALARY HISTORY)
SALARY HISTORY
BANS
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE FMLA REQUIRES THAT QUALIFIED EMPLOYERS GRANT UP TO 12WEEKS PER YEAR OF UNPAID LEAVE TO ELIGIBLE EMPLOYEES WHO NEED TO CARE FOR FAMILY MEMBERS OR THEMSELVES
SOME STATES AND LOCAL GOVERNMENTS ARE IMPLEMENTING MORE GENEROUS LEAVE POLICIES FOR EMPLOYEES
-NEW YORK EMPLOYEES ARE ENTITLED TO TAKE UP TO 10 WEEKS OF PAID SICK LEAVE IN 2019 AND THE AMOUNT OF PAID SICK LEAVE WILL RISE TO 12 WEEKS IN 2021
-CALIFORNIA AS OF JULY 1 STATE-MANDATED PAID LEAVE EXPANDED FROM 6 TO 8 WEEKSWITH AN EVENTUAL EXPANSION UP TO 6 MONTHS
-CONNECTICUT STARTING JANUARY 1 2022 EMPLOYEES ARE ENTITLED TO UP TO 12 WEEKSOF PAID LEAVE PER YEAR TO CARE FOR A NEWBORN A NEWLY ADOPTED OR FOSTER CHILD A SERIOUSLY ILL RELATIVE BY BLOOD OR MARRIAGE OR CLOSE ASSOCIATE WHO IS LIKE A FAMILY MEMBER
-MASSACHUSETTS EMPLOYEES ARE ELIGIBLE TO TAKE UP TO 26 WEEKS OF PAID LEAVE PER YEAR FOR MEDICAL OR FAMILY REASONS STARTING JANUARY 1 2021 ON JULY 1 2021 PAID LEAVE BENEFITS WILL ALSO BE AVAILABLE FOR THE CARE OF A FAMILY MEMBER WITH A SERIOUS HEALTH CONDITION
-MUNICIPALITIES LIKE DALLAS ARE ADOPTING PAID LEAVE POLICIES
-PAID TIME OFF FOR ANY REASON
STATE EXPANSION
OF PAID LEAVE
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
VIRGINIA CALIFORNIA NEW YORK AND NEW JERSEY OFFICIALLY BAN HAIR DISCRIMINATION
CROWN ldquoCREATE A RESPECTFUL AND OPEN WORKPLACE FOR NATURAL HAIR ACTrdquo
THESE LAWS TYPICALLY BAN RACIAL DISCRIMINATION BASED ON TRAITS HISTORICALLY ASSOCIATED WITH RACE INCLUDING HAIR TEXTURE HAIR TYPE AND PROTECTIVE HAIRSTYLES SUCH AS BRAIDS LOCKS AND TWISTS
HAIRSTYLE amp CONFORMING DRESS RULES
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
IN THE WAKE OF THE COVID-19 PANDEMIC EXPECT THE EEOC AND OTHER STATE ENFORCEMENT AGENCIES TO TAKE A CLOSER LOOK AT THE ISSUE OF TELECOMMUTING AS A REASONABLE ACCOMMODATION FOR AN ADA DISABILITY
TELECOMMUTING
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
UNDER EXISTING LAWS WITH CERTAIN EXCEPTIONS EMPLOYERS MAY NOT ASK JOB APPLICANTS ABOUT PAST ARRESTS OR DETENTIONS THAT DIDNrsquoT RESULT IN A CONVICTION FOR PURPOSES OF MAKING HIRING PROMOTION OR TERMINATION DECISIONS
CURRENTLY 35 US STATES AND MORE THAN 150 CITIES AND COUNTIES HAVE PASSED BAN-THE-BOX LAWS WHICH IN MOST CASES REMOVE QUESTIONS ABOUT CRIMINAL HISTORY FROM JOB APPLICATIONS AND DELAY ASKING ABOUT IT UNTIL A CONDITIONAL JOB OFFER HAS BEEN MADE
STATES ARE NOW CONSIDERING LAWS PROHIBITING EMPLOYERS FROM ASKING APPLICANTS ABOUT JUVENILE NON-FELONY CONVICTIONS
JUVENILE CRIMINAL HISTORIES
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
AUTOMATED RESUME PARSING AI-POWERED ASSESSMENTS AND ALGORITHM-BASED HIRING PLATFORMS HAVE BECOME A POPULAR METHOD FOR SIFTING THROUGH RESUMES AND FOR ELIMINATING BIAS IN THE HIRING PROCESS
HOWEVER THE USE OF EMERGING TECHNOLOGIES LIKE AI MACHINE LEARNING AND ALGORITHMS FOR SCREENING APPLICANTS IS BEGINNING TO GENERATE MORE SCRUTINY
BUT AUTOMATED DECISION-MAKING MAY ALSO BE CLOUDED BY BIAS BASED ON THE DESIGN AND INTERPRETATIONS OF THE ALGORITHM
SOME STATES ARE STARTING TO PASS LAWS PROVIDING RIGHTS TO APPLICANTS WHERE AI-POWERED ASSESSMENTS ARE USED EG ILLINOIS(EFFECTIVE JAN 1) ldquoARTIFICIAL INTELLIGENCE VIDEO INTERVIEW ACTrdquo
- THE LAW PROVIDES RIGHTS TO JOB APPLICANTS IF AI WILL BE USED TO ANALYZE THEIR VIDEO INTERVIEW
CONGRESS IS ALSO BEGINNING TO CONSIDER THE ISSUE (US HOUSE EDUCATION AND LABOR COMMITTEE)
USE OF AI APPLICANT SCREENING
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
TOPIC 2 COVID-19 amp WORKPLACE WELL-BEING
DEVELOPING A RETURN-TO-WORK PLAN
HIRING DURING
COVID-19
EMPLOYEE RIGHTS TO LEAVES OF ABSENCE
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(1) CLEANING amp SANITIZING THE WORKPLACE
- PROVIDE SANITIZERS FREQUENTLY WIPING DOWN COUNTERS DOORKNOBS ELEVATOR BUTTONS ETC
- FOG THE WORK AREA AFTER HOURS
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(2) ENFORCE SOCIAL DISTANCING amp HYGIENE
-PROVIDE HAND SANITIZERS PAPER GOODS SANITIZING WIPES BOTTLED WATER FACE MASKS GLOVES TISSUES SOAP TRASH RECEPTACLES ETC
-REQUIRE EMPLOYEES WHO TEST POSITIVE OR ARE SYMPTOMATIC TO REMAIN HOME
-POST REMINDERS IN COMMON AREAS EG BATHROOM BREAKROOM ELEVATORS COPY MACHINES AND CENTRAL DOORS
-ALLOW EMPLOYEES TO TELEWORK WHEN POSSIBLE
-LIMIT BUSINESS TRAVEL
-MAXIMUM RESTROOM CAPACITIES
-LIMIT IN-PERSON MEETINGS DINING AREAS EVENTS AND OTHER SOCIAL GATHERINGS
-STAGGER WORK TIME OR SCHEDULES TO LIMIT CONTACT AMONG EMPLOYEES
-RESTRICT NON-EMPLOYEE VISITORS WHEN POSSIBLE
- INCREASE SPACE BETWEEN DESKS CUBICLES AND OTHER WORKPLACES
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(3) ENFORCE SOCIAL DISTANCING amp HYGIENE
-MARKING OFF SIX FEET WAITING DISTANCES
-STAGGER MEAL AND REST BREAKS
- INSTALLING PARTITIONS OR SHIELD WHERE THERE IS PUBLIC INTERACTION
-REVIEW CURRENT VENTILATION
-TRAIN STAFF ON SAFETY PROTOCOLS
-CLOSE OFF COMMON SPACES WHERE EMPLOYEES OR OTHERS ARE LIKELY TO CONGREGATE EG BREAK ROOM WATER COOLER MEDIA ROOM ETC
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(4) SCREENING EMPLOYEES amp VISITORS
-HAVE AN ACTION PLAN FOR EMPLOYEES WHO TEST POSITIVEPRESUMPTIVE POSITIVE COVID-19 EG CONTACT TRACING TESTING SEND HOME
-TEMPERATURE CHECKS
-SCREENING QUESTIONS EMPLOYERS HAVE LEEWAY TO MAKE CERTAIN MEDICAL INQUIRIES OTHERWISE PROHIBITED BY THE ADA
(A) HAVE YOU OR HAS ANYONE IN YOUR HOUSEHOLD EXPERIENCED ANY COVID-19 SYMPTOMS IN THE LAST 14 DAYS(B) HAVE YOU BEEN SYMPTOM-FREE FOR AT LEAST THREE DAYS(C) HAVE YOU BEEN EXPOSED TO ANYONE WITH A CONFIRMED CASE OF COVID-19
DEVELOPING A RETURN TO WORK PLAN
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
THE GOAL IS REDUCTION OF EMPLOYEE EXPOSURE
(5) SCREENING EMPLOYEES amp VISITORS
- WHEN CAN YOU REQUIRE A TEST
(A) DIRECT THREAT amp JOB IMPAIRMENT THE EMPLOYER REASONABLY AND OBJECTIVELY BELIEVES THAT AN EMPLOYEErsquoS CURRENT MEDICAL CONDITION EITHER IMPAIRS THE EMPLOYEErsquoS ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS OR POSES ADIRECT THREAT TO THE HEALTH OR SAFETY OF THE EMPLOYEE OR OTHERS
(B) EEOCHAS HELD THAT SUCH CIRCUMSTANCES SATISFY THE ADArsquoSREQUIREMENT THAT ANY MANDATORY MEDICAL TEST OF EMPLOYEES BE ldquoJOB RELATED AND CONSISTENT WITH BUSINESS NECESSITYrdquo
(C) ADASTANDARDS REQUIRE THE TEST TO BE ACCURATE AND RELIABLE CONSULTCDCAND US FDAGUIDANCE
DEVELOPING A RETURN TO WORK PLAN
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
HIRING DURING COVID-19
SCREENING FOR COVID-19 PERMITTED AS A CONDITION OF EMPLOYMENT
DELAYING THE START-DATE OF AN EMPLOYEE WHO HAS COVID-19 OR SYMPTOMS ASSOCIATED WITH THE DISEASE
WITHHOLDINGWITHDRAWING OFFER FOR AN APPLICANT WHO EXHIBITS COVID-19 SYMPTOMS IS PERMISSIBLE UNDER THE ADA IF THE HIRING NEED IS IMMEDIATE
HIRING DURING COVID-
19
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
EMERGENCY PAID SICK LEAVE
UNDER THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA) PRIVATE AND GOVERNMENTAL EMPLOYERS WITH FEWER THAN 500 EMPLOYEES MUST PROVIDE UP TO 10 DAYS (80 HOURS) OF PAID SICK LEAVE RELATED TO COVID-19
NOTE NEW YORK CALIFORNIA AND OTHER LOCAL GOVERNMENTSHAVE ADDED ADDITIONAL LEAVE REQUIREMENTS
ELIGIBILITY
AT LEAST 30-DAYSEMPLOYMENT
BASED ON ONE OF THE FOLLOWING COVID-19 RELATED REASONS
-FEDERAL STATE OR LOCAL QUARANTINE-SELF-QUARANTINE AT THE ADVICE OF A HEALTH CARE PROVIDER-OBTAINING A MEDICAL DIAGNOSIS IF EXPERIENCING SYMPTOMS-CARING FOR A SICK INDIVIDUAL WHO IS SUBJECT TO FEDERAL STATEOR LOCAL QUARANTINE OR IS SELF-QUARANTINED AT THE ADVICE OF A HEALTH CARE PROVIDER-CARING FOR A CHILD WHOSE SCHOOL OR CHILDCARE FACILITY HAS BEENCLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE -EXPERIENCING ANY OTHER ldquoSUBSTANTIALLY SIMILARrdquo CONDITION SPECIFIED BY THE SECRETARY OF HEALTH AND HUMAN SERVICES
PAY CAP
FOR THE FIRST THREE REASONS PAY IS CAPPED AT $511 DAY ($5100 AGGREGATE) FOR THE REMAINING REASONS PAY IS CAPPED AT $200DAY ($2000 AGGREGATE)
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
EMERGENCY FMLA
THE FFCRA ALSO AMENDS THE FAMILY MEDICAL LEAVE ACT (FMLA) TO ALLOW ELIGIBLE EMPLOYEES TO TAKE UP TO 12 WEEKS YEAR OF JOB-PROTECTED LEAVE TO CARE FOR A CHILD YOUNGER THAN 18 WHOSE SCHOOL IS CLOSED OR WHOSE CHILDCARE PROVIDER IS UNAVAILABLE
-EFMLALEAVE IS UNPAID FOR THE FIRST 10 DAYS AND THEN IS PAID AT 23 THE EMPLOYEErsquoS NORMAL RATE OF PAY CAPPED AT $200DAY AND $10000 AGGREGATE
- THE FFCRAPROVIDES A TOTAL OF 12 WEEKS LEAVE NO COMBINING FMLAFFCRA
-BUThellip AN EMPLOYER CAN ALLOW AN EMPLOYEE TO USE OTHER SICK LEAVE VACATION TIME OR PTOTO PROVIDE ADDITIONAL LEAVE
FFCRA EXPIRES ON 12312020
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
OTHER COVID-19 HR ISSUES
PREVENT WORKPLACE HARASSMENTDISCRIMINATION BASED ON COVID-19 DIAGNOSIS OR PAST ILLNESS EG NO RESTRICTING MOVEMENT NO JOKES (ldquoCORONA CONNIErdquo) ETC
- ADOPT ZERO-TOLERANCE POLICY
NO RETALIATIONADVERSE ACTION - EG NO DISCIPLINARY ACTION TERMINATION MANDATING WORK WHILE SICK WITHDRAWING BENEFITS ETC
PRESERVE PRIVACY NEED-TO-KNOW BASIS FOR SUPERVISORSMANAGERS
-EMPLOYEE WHO REFUSES TO RETURN TO WORK- IMMUNECOMPROMISED IMMINENT DANGER OR NERVOUS NELLIE
-WHAT ABOUT PRE-EXISTING MENTAL ILLNESS EXACERBATED BY THEPANDEMIC
- CHILDCARE ISSUES (ONLY 12 WKS UNDER FFCRA)
STORING MEDICAL EXAMINATION RESULTS
- STORE SEPARATELY FROM EMPLOYEErsquoS PERSONNEL FILE AND PROPERLY SECURE EG COVID-19 TEST RESULTS TEMPERATURE CHECKS ANTIBODY RESULTS ETC
EMPLOYEE RIGHTS
TO LEAVES OF ABSENCE
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
TOPIC 3 MEDICAL MARIJUANA
MEDICAL MARIJUANA IN GENERAL TRENDS
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
CURRENTLY 33 STATES AND THE DISTRICT OF COLOMBIA PERMIT THE USE OF MEDICAL MARIJUANA LAWS FOR TREATMENT OF SERIOUS MEDICAL CONDITIONS
ALMOST frac12 OF THOSE STATES PROVIDE EXPLICIT EMPLOYMENT PROTECTIONS
BUThellip LEGALIZATION OF MEDICAL MARIJUANA DOESNrsquoT MEAN THAT ITrsquoS ALLOWED IN THE EMPLOYMENT CONTEXT
CONFLICT BETWEEN STATE AND FEDERAL LAW
-MARIJUANA STILL CONSIDERED A SCHEDULE 1 SUBSTANCE UNDER THE CONTROLLED SUBSTANCES ACT
-UNDER THE ADA THE TERM lsquordquoINDIVIDUAL WITH A DISABILITYrdquo DOES NOT INCLUDE AN INDIVIDUAL WHO IS CURRENTLY ENGAGING IN THE ILLEGAL USE OF DRUGS WHEN EMPLOYER ACTS ON THE BASIS OF SUCH USE
MEDICAL MARIJUANAGENERALLY
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
GENERAL RULE (FOR STATES THAT HAVE ADOPTED LAWS)
AS LONG AS THE EMPLOYEE IS NOT BRINGING HIS OR HER MEDICAL MARIJUANA TO WORK OR WORKING IN A JOB WHERE IMPAIRMENT MAY RESULT IN SERIOUSHARM TO OTHERS AND ISNrsquoT WORKING IN A FEDERALLY-RELATED JOB THE EMPLOYER CANNOT TAKE MEDICAL CANNABIS USE OR POSITIVE DRUG TEST RESULTS INTO CONSIDERATION WHEN MAKING HIRING AND FIRING DECISIONS
MOST STATES ALLOW EMPLOYERS TO TERMINATE EMPLOYEES WHO SHOW UP FOR WORK UNDER THE INFLUENCE OF MARIJUANA- EVEN IF THEY NEED IT TO TREAT A MEDICAL CONDITION
HOWEVER ABOUT 20 STATES PROHIBIT EMPLOYERS FROM DISCRIMINATING AGAINST MEDICAL MARIJUANA CARDHOLDERS OR FROM FIRING EMPLOYEES FOR TESTING POSITIVE FOR MARIJUANA DUE TO OFF-DUTY USE
MEDICAL MARIJUANAGENERALLY
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
-EVALUATE YOUR DRUG-FREE WORKPLACE AND DRUG TESTING POLICIES
-CAN THE EMPLOYER TOLERATE OFF-DUTY USE OF MEDICAL MARIJUANA FOR AN EMPLOYEE WITH A DISABILITY
-CHECK YOUR CURRENT STATE LAWS
TRENDS
Virtual Schedule 08022020
NCACC Virtual Education Program Materials
Courts of the Future
Marchant Bio Short
Courts of the Future 08 02 2020
Emerging Technologies and the Courts
AOPConneced 3 2019_WEB
Palm Beach County Robots
CGuerra Bio 072020
Tom Hall Bio
AI Presentation 8-20205925
Labor amp Employment Law
Pandemics Marijuana Trends
MOST STATES DO NOT REQUIRE ANY SPECIAL WORKPLACE ACCOMMODATIONS FOR MEDICAL CANNABIS PATIENTS AND LEAVE POLICIES RELATING TO CANNABIS USE AND SUBSEQUENT DISCIPLINARY ACTIONS UP TO INDIVIDUAL EMPLOYERS
NEVADADEVIATES FROM THE TREND AND HAS ADOPTED AN ACCOMMODATION LAW EG ALLOWING AN EMPLOYEE TO START WORK LATER IN THE DAY DUE TO THE NEED FOR MEDICAL MARIJUANA TO TREAT GLAUCOMA OR CROHNrsquoS DISEASE
STILL OTHER STATES EXPLICITLY ALLOW EMPLOYERS TO FIRE EMPLOYEESFOR OFF-DUTY MEDICAL MARIJUANA USE
OTHER STATES HAVE NOT EVEN ADDRESSED THE ISSUE
RECENTLY MORE STATES HAVE LEGALIZED MARIJUANA FOR RECREATIONAL PURPOSES BUT MOST ALLOW EMPLOYERS TO ENFORCE ZERO-TOLERANCE DRUG POLICIESAND FIRE EMPLOYEES FOR OFF-DUTY USE
-ONLY ONE STATE SO FAR MAINE PROTECTS OFF-DUTY RECREATIONAL MARIJUANA USE
MEDICAL MARIJUANAGENERALLY
DEVELOPING TRENDS-
COMPLETE LEGALIZATION FOR MEDICAL USE
GENERAL DECRIMINALIZATION
OUTLAWING EMPLOYMENT DISCRIMINATION AGAINST MEDICAL CANNABIS PATIENTS
EXPUNGEMENTSEALING OF RECORDS
-FOR MINOR OFFENSES EG AK IL NJ CA amp NYHAVE SOME LEVEL OF EXPUNGEMENTSEALING FOR MINOR OFFENSES
ACCOMMODATION ALLOWING USE OF MEDICAL MARIJUANA
-USE THE ADAINTERACTIVE PROCESS TO ADDRESS OFF-DUTY USE
