New York City Proposes Rules on Automated Employment Decision Tools

​On Sept. 23, the New York City Department of Consumer and Worker Protection (DCWP) proposed additional rules relating to Local Law 144 of 2021, which will regulate the use of automated employment decision tools, starting Jan. 1, 2023. 

The newly proposed rules provide much-needed clarity on key gaps within Local Law 144. The comment period is now open, with a public hearing set for Oct. 24.  Stakeholders may provide written comments or seek to testify orally by way of the DCWP's website.

Briefly, the proposed regulations published by the DCWP:

• Define and limit the scope of the "substantially assist or replace" standard for the applicability of automated employment decision tools (AEDTs), making it clear that an AEDT is covered under the law where it is used as a dispositive decision criterion or to modify a conclusion derived from other factors, including human decision-making.
• Clarify that a "candidate for employment" means an individual who has applied for a specific employment position and has provided necessary information, such as a resume or application form. This appears to be intended to limit the application of the law to candidates who may have been considered in a search, but have not expressed interest in or applied for a given job.
• Add significant detail on the structure and content of the bias audit required by the law, including requirements that employers calculate the selection rate of an artificial intelligence tool based on race, ethnicity, and gender, and an impact ratio of the tool's operation on these categories.
• Expand on the content of the audit summary that employers are required to publish, which includes a requirement that the selection rate and impact ratio of an artificial intelligence tool be required in the summary.
• Provide alternatives for complying with the notice requirement of the law, including by way of mail or email, notice on the careers section of an employer's website, or via a notice included in a job listing.
  

Littler will publish a fuller analysis of these proposed rules shortly, and a detailed analysis of the underlying law may be found here.

Niloy Ray is an attorney with Littler in Minneapolis. Jim Paretti is an attorney with Littler in Washington, D.C. © 2022. All rights reserved. Reprinted with permission.