The New York City Department of Consumer and Worker Protection (DCWP) announced two business days before the start of enforcement of New York City Local Law No. 144 of 2021, the first law regulating the use of AEDTs (automated employment decision tools). . A set of frequently asked questions (FAQ). These FAQs are subject to the law codified December 2021. Regulations will be published and revised in April, September and December 2022. Further revised regulations will apply in April 2023. Enforcement postponed until July 5, 2023. At each stage, the DCWP has substantially refined its interpretation of the law. These FAQs from a recent roundtable are no exception, offering one valuable clarification and one significant new concern.
Use AEDT to scan your resume bank or invite applications
FAQ I.6 clearly states that using an AEDT to fill a particular position only applies if the AEDT applies to the person applying for that position.
6. If an employer or hiring agency uses an AEDT to scan resume banks, reach out to potential candidates, or solicit applications, are legal requirements applicable?
no. Requirements apply only to her use of the AEDT for the purpose of evaluating candidates for employment or promotion. An Employment Candidate is a person who has applied for a particular job posting by submitting the required information or items in the format required by the employer or employment agency.
Bias audit and notification requirements do not apply if the use of the AEDT is to evaluate a person who has not applied for a particular employment position, rather than an employee being considered for promotion.
This answer uses AEDT to search existing databases of non-employee resumes and other potential applicant data, and to invite people identified as lead candidates to apply for current positions. Encouragement alone has been proven not to trigger requirements. of law.
Geographic scope of employment agencies and employer legislation
FAQ I.4 blurs out requirements for employment agencies, among others:
4. What are the legal requirements and how do they apply to AEDTs used “in the city”?
This law applies only to employers and employment agencies that use AEDTs “in town.” this means:
• Work at our New York City office, at least part-time.again
• My work is completely remote, but my associated location is my New York office.again
• If the employment agency that uses the AEDT is located in New York City or if the employment agency is located outside New York City, then one of the bullet points above applies.
Good news first. If you are an employer, the geographic analysis is simple, consistent with previous interpretations of laws and regulations, and based on your employer’s location. work, not your employer. This law does not apply if the work is performed at an office or other corporate location outside New York City. If the function is performed at a designated corporate location in New York City (whether in a partial or combined manner), the law applies. and if the work was done outside of his 100% corporate location (for examplein a telecommuting setting), this law does not apply. otherwise The person is at the employer’s New York City location.
Here’s the bad news. This division of geographic scope could easily be applied to recruitment agencies, but his third bullet point above confuses things. A literal reading implies that this law applies to: all Even if the job was done entirely outside of New York City, if the employment was done by an employment agency located in New York City. We understand that such is not the intent of the DCWP and that the DCWP will not be held responsible if the position being taken is (at least partially) located in New York City, or completely remote but co-located with the bricks of New York City. We anticipate intending to regulate agency-based employment only if and mortar office. We will keep you updated if the DCWP publishes additional clarifications in this regard.
Complaints and other new details in the FAQ
Finally, the FAQ substantiates or confirms some other aspects of the law.
- FAQ II.1 points out that the law does not go far enough to mandate corporate analysis and audit bias. The results of the bias audit are not intended to prompt the company to take any specific subsequent actions.
- FAQ III.3 addresses a concern first expressed at the May 2023 roundtable that companies may strategically exclude data from certain time periods or regions to improve bias audit results. I repeat. To combat this concern, the DCWP says that if an audit dataset is “restricted in any way, including to certain regions or time periods,” the audit must “explain why.”
- FAQ III.4 confirms that biased audits do not have to be job or job class specific. Rather, a biased audit that spans multiple types of job titles is sufficient.
- FAQs III.5 and III.7 advise independent auditors on whether companies should use synthetic test data instead for bias audits when there are gaps or inadequacies in candidate demographic data. should be sought.
- Together, FAQs VII.1 and VII.2 encourage reporting to the DCWP of “suspected violations” of the audit and notification requirements of Local Law 144, but actual “discrimination complaints” may be filed with the New York City Human Rights It clarifies that it will be referred to a committee. .
Conclusion
As the winding road to enforcement of this law shows, regulating AI-driven employment activities is neither simple nor abstractly easy. Rather, many of the nuances of this law and other similar legal initiatives will only become apparent as companies begin their compliance efforts. At her DCWP roundtable with business advocates/employers on May 22, 2023, the DCWP Office decided not to penalize businesses that work in good faith to meet the requirements of New York City Local Law 144. , firmly declared their intention to cooperate. That guarantee is better than any FAQ. Or other pre-enforcement clarifications will be important in the coming months.
