Final Regulations for Automated Employment Decision Tools Law of NYC to be Enforced by July 5, 2023
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As late as April 2021, Karma Global took a very bold step of venturing into foreign shores in terms of shoving up its business prospects in countries like US, UK, UAE, Canada, Philippines and South East Asia.
It has already made its mark in terms of providing excellent services in the areas of payroll, outsourcing, recruitment and talent acquisition, facility management services and regulatory compliances including immigration, negotiations and employment contracts in these foreign countries as well.
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Final Regulations for Automated Employment Decision Tools Law of NYC to be Enforced by July 5, 2023
Background
Local Law 144 prohibits New York City employers and employment agencies from using AEDTs in employment decision-making processes unless they take a number of specific and affirmative steps, including:
(I) subjecting the AEDT to a bias audit performed by an “independent auditor” within one year of the AEDTs use;
(ii) making the results of such bias audit(s) publicly available; and
(iii) providing notice to employees and job candidates that an AEDT will be used in connection with a given assessment or decision, and providing instructions for how these individuals can request an alternative evaluation process or a reasonable accommodation.
NYC promulgates its final regulations including expansion of the definition
On April 6, 2023, the New York City Department of Consumer and Workforce Protection (“DCWP”) promulgated its final regulations regarding the New York City Automated Employment Decision Tools Law (“AEDTL”).
In connection with the Final Regulations, the DCWP also notified employers that it would further delay enforcement of the AEDTL from April 15, 2023 to July 5, 2023.
The Final Regulations, among other things, expand the definition of “machine learning, statistical modelling, data analytics, or artificial intelligence” as used in the AEDTL and clarify specifics around the bias audits required by the AEDTL.
Employers have until July 5, 2023 to determine whether they use an AEDT to make employment decisions, and if so, they need to follow the 3 steps mentioned above.
AEDTL will challenge employers’ ability on use of automated employment decision tool:
Once enforced, the AEDTL will restrict employers’ ability to use “automated employment decision tools” in hiring and promotion decisions within New York City.
The AEDTL defines “automated employment decision tool” as “any computational process, derived from machine learning, statistical modelling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”
What are the conditions for use?
Employers may not use automated employment decision tools unless:
(i) the tool has been the subject of a bias audit conducted within the previous year in accordance with the AEDTL’s requirements; and
(ii) the employer has published a summary of the results of the tool’s most recent bias audit, as well as the distribution date of the tool to which such audit applies, on its publicly-available website.
(iii) The bias audit must be performed by an “independent auditor,” who cannot have been involved in using, developing or distributing the tool, cannot have an employment relationship with an employer that seeks to use the tool or a vendor that developed or distributed it, and cannot have a direct or material indirect financial interest in the employer that seeks to use the tool or the vendor that distributed it.
What procedure needs to be followed for those who use:
Under the AEDTL, employers who use automated employment decision tools must also disclose the following information to candidates at least ten business days before the tool is used:
(i) the fact that an automated employment decision tool will be used in connection with the assessment or evaluation of any candidate who lives in New York City;
(ii) the job qualifications and characteristics that the automated employment decision tool will use in assessing the candidate; and
(iii) instructions for how an individual can request an alternative selection process or reasonable accommodation, if available.
The AEDTL does not obligate employers to provide an alternative selection process, though employers are otherwise obligated to provide a reasonable accommodation if required under the Americans with Disabilities Act and analogous state and local laws.
What is additional disclosure and violations:
Finally, the AEDTL obligates employers to undertake the following additional disclosure steps:
(i) provide information in the employment section of its website in a clear and conspicuous manner about its automated employment decision tool data retention policy, the type of data collected for the tool, and the source of the data;
(ii) post instructions on the employment section of its website in a clear and conspicuous manner for how to make a written request for such information, and if a written request is received, provide such information within 30 days; and
(iii) if such a request is denied, explain why disclosure of such information would violate applicable law or interfere with a law enforcement investigation.
Employers who violate the AEDTL may be subject to civil fines ranging between $500-$1,500 per day that the employer does not comply with the law. The AEDTL neither expressly permits nor prohibits a private right of action, but states that it shall not be construed to “limit any right of any candidate or employee for an employment decision to bring a civil action in any court of competent jurisdiction.”
Impact of The Final Regulations:
The Final Regulations imposed several discrete changes to the AEDTL’s requirements and clarified employers’ obligations.
Expand the definition of “machine learning, statistical modelling, data analytics, or artificial intelligence” to mean “a group of mathematical, computer-based techniques: (i) that generate a prediction, meaning an expected outcome for an observation, such as an assessment of a candidate’s fit or likelihood of success, or that generate a classification, meaning an assignment of an observation to a group, such as categorizations based on skill sets or aptitude; and (ii) for which a computer at least in part identifies the inputs, the relative importance placed on those inputs, and, if applicable, other parameters for the models in order to improve the accuracy of the prediction or classification”;
Require bias audits to indicate the number of individuals that the tool assessed that are not included in the calculations because they fall within an unknown category, and requiring that number to be included in the summary of results;
Permit auditors to exclude categories that comprise less than 2% of the data being used for a bias audit from the calculations of impact ratio;
Clarify examples of a bias audit;
Clarify when an employer may rely on a bias audit conducted using the historical data of other employers;
Provide examples of when an employer may rely on a bias audit conducted with historical data, test data or historical data from other employers; and
Clarify that the number of applicants in a category and scoring rate of a category, if applicable, must be included in the summary of results.
Conclusion and Next Steps
The AEDTL and the Final Regulations are complex and employers who do use or are contemplating the use of automated employment decision tools now have three additional months to comply.
In that period, employers should: (i) identify any automated employment decision tools that they currently use and which may be subject to the AEDTL; (ii) begin collecting historical data or, if sufficient historical data is unavailable, identify appropriate test data; (iii) identify an appropriate independent auditor and obtain a bias audit; and (iv) plan to comply with the AEDTL’s notice requirements.
Given the many nuances of the AEDTL and Final Regulations and the potentially significant penalties at stake, employers are strongly encouraged to coordinate with counsel in their compliance efforts.
Karma Global while dealing with all such issues and cases, always takes the approach to act trust-worthily and to be compliant with the laws of the land.
Karma Global encourages employees to promptly raise concerns about safety, quality, potential violations of the law, or on its various policies.
Karma Global also works to foster an environment in which employees feel safe seeking guidance, raising concerns, and identifying areas for improvement.
Karma Global also believes and appreciates that speaking up may not always be easy, and the company offers several options for raising concerns confidentially, including through managers, toll-free phone numbers, and web-based portals.
Karma Global has a policy of code of ethics in place and the HR Head is also designated as the Site Compliance and Ethics Officers to provide in-person and online support to employees who are looking for guidance or need to report a concern, and can provide additional compliance and ethics resources. Any retaliation against employees who raise a concern is not tolerated and is grounds for discipline, up to and including termination.
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Proprietary blog of Karma Global Tech Management LLC
This blog has been collated and compiled by the internal staff of Karma Global with the knowledge and expertise that they possess, besides adaptation, illustration, derivation, transformation, collection and auto generation for its monthly newsletter Issue 11 of May 2023 and in case of specific or general information or compliance updates for that matter, kindly reach out to the
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