Published: New Hampshire Business Review
December 1, 2023
As 2023 winds down and a new year is just over the horizon, employers are wondering what HR and employment law issues are around the corner. For the new year, the biggest employment law trends include more employers bringing workers back to the office, an emphasis on workplace culture, and the exploding use of artificial intelligence in hiring and HR functions.
Return to Work
By all accounts, 2024 looks like it will be the year of the return to the office. The COVID-19 health emergency officially ended this year and, even though the pandemic has permanently changed some of the ways we live and work, life is getting back to normal in many respects. While many employees continue to work remotely, more and more employers are asking workers to come back to the office, at least for a few days per week. A recent study found that 90% of employers plan to implement a return to the office policy in 20204. Even Zoom—the company that gave us the technology that so many of us relied on to work remotely during the pandemic—is asking many of its employees to return to the office two days per week. Only 2% of employers say that they will never ask workers to come back to the office.
Employers who are considering implementing a return to the office policy should give thought to how the policy is structured and implemented, and they should work with employment counsel to help minimize risks and ensure a smooth rollout. Employers should give thought to crafting a policy that is fair and that will be consistently applied in order to reduce the risk of claims that the policy is discriminatory or selectively enforced. Employers should also pay careful attention to requests from employees for exemption or variation from a return to work policy as a reasonable accommodation for a disability. After more than three years of employees productively working remotely, it may be more challenging for an employer to assert that an employee's request for remote work is an "undue hardship."
Another big trend for 2024 is continued and expanded focus on workplace culture. Unemployment continues to be low, and labor shortages are making it harder for all kinds of employers to fill open positions. One of the best ways for employers to hire and retain quality talent is to foster a healthy workplace culture which will help attract candidates and reduce turnover. A positive workplace culture based on strong company values can reduce the risk of discrimination and harassment claims by ensuring that all employees are treated with respect and dignity.
The third major trend for employers to watch in 2024 will be the expanding use of artificial intelligence in the workplace. Employers are looking at new ways to incorporate AI into the hiring process and the automation of certain HR functions. While this new technology offers some exciting opportunities for employers, some caution is needed especially while the kinks are still being worked out of the software.
One of the biggest concerns with the use of AI in the workplace is the potential for unrecognized racial and gender bias in the software's output, which would be particularly risky if employers are using AI to assist in the hiring process, such as for the screening of applications and resumes, or in the administration of pre-hiring questionnaires or automated "interviews."
In order to minimize some of these risks, the Biden administration issued a framework for an "AI Bill of Rights that includes some principles that employers could incorporate into plans for the use of AI in HR systems. The principles in the AI Bill of Rights include:
- Ensuring that the AI systems used by employers are safe and effective.
- Having safeguards in place to prevent, test for, and identify, unintended discrimination in the system's algorithms.
- Making sure that candidates' and employees' personal data is safeguarded.
- Employers should disclose to employees and candidates that AI systems are being used.
- And employers would be sure to provide a human "fallback" to the system, both to monitor the outputs, but also to assist any employees or candidates who run into trouble accessing the system.
As we get ready for 2024, employers should make a new year's resolution to review their employment policies and practices to ensure that they are complying with state and federal laws. Employment counsel can help employers navigate the basics, and to navigate the newest challenges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.