The Department of Justice has issued guidance to federal funding recipients on complying with federal antidiscrimination laws. The White House released an artificial intelligence action plan. The Department of Labor reinstated the Payroll Audit Independent Determination Program (PAID) that allows employers to conduct self-audits of potential FLSA and FMLA violations and report the results of to the Wage and Hour Division. The Senate has confirmed Andrea Lucas, acting chair of the EEOC, to a second term as an EEOC commissioner.

Justice Department Issues Guidance on Unlawful Discrimination – The Justice Department issued guidance to recipients of federal funding on the need to comply with federal antidiscrimination laws including the legal risks presented by unlawful diversity, equity, and inclusion (DEI) programs. The guidance applies to all entities that receive federal financial assistance or that are otherwise subject to federal antidiscrimination laws including public and private employers, state and local governments, and educational institutions. The guidance concludes that “By prioritizing nondiscrimination, entities can mitigate the legal, financial, and reputational risks associated with unlawful DEI practices and fulfill their civil rights obligations.”

The guidance “emphasizes the significant legal risks of initiatives that involve discrimination based on protected characteristics…” The guidance reviews federal nondiscrimination requirements, the legal risks of DEI programs, the prohibition against using unlawful discriminatory policies and practices, the need to maintain sex separated spaces such as bathrooms, and protecting against retaliation or adverse actions due to individuals opposing practices that are discriminatory.

The guidance includes recommended best practice suggestions designed to assist entities in avoiding legal liability. The best practice recommendations include:

• Ensure inclusive access so that all workplace programs are open to all qualified individuals regardless of race, sex, or other protected characteristics.
• Focus on skills and qualifications to ensure that selection decisions are based on “specific, measurable skills and qualifications directly related to job performance or program participation.”
• Prohibit demographic-driven criteria that are designed to achieve discriminatory outcomes, even if they use facially neutral means.
• Document legitimate rationales so that criteria used in hiring or promotions are unrelated to race, sex, or other protected characteristics.
• Eliminate diversity quotas such as policies requiring representation of certain protected groups in candidate pools, hiring panels, or final selection. As an example, the guidance recommends “replacing a policy requiring at least one minority candidate per slate with a process that evaluates all applicants based on merit.”
• Avoid exclusionary training programs by ensuring trainings are open to all qualified participants, regardless of protected characteristics. Avoid having trainings ask participants to “affirm specific ideological positions or confess to personal biases or privileges based on a protected characteristic.”
• Establish anti-retaliation procedures, create reporting mechanisms, and communicate policies that prohibit retaliation for engaging in protected activities like filing complaints or refusing to participate in potentially discriminatory programs. 

White House Releases AI Action Plan – The White House has released an artificial intelligence (AI) action plan titled, “Winning the Race: America’s AI Action Plan.” President Trump issued Executive Order 14179 in January that called for the US to achieve AI global dominance and directed the creation of an AI action plan. The action plan states that “The United States needs to innovate faster and more comprehensively than our competitors in the development and distribution of new AI technology across every field and dismantle unnecessary regulatory barriers that hinder the private sector in doing so.”

The Administration recognizes that AI will “transform how work gets done across all industries and occupations, demanding a serious workforce response to help workers navigate that transition.” The plan recommends several action such as prioritizing AI skill development in education, workforce training, and apprenticeships, clarifying that AI skills development programs may qualify as eligible educational assistance under Section 132 of the Internal Revenue Code, thus allowing employers to offer tax-free reimbursement of these programs, studying the impact of AI on the labor market, creating the AI Workforce Research Hub to evaluate the impact of AI on the labor market and the experience of the American worker, and funding the retraining of individuals impacted by AI related job displacement.

The plan notes that American workers are central to the Administration’s AI policy and that AI will “improve the lives of Americans by complementing their work—not replacing it.” The plan calls for training a skilled workforce that can build, operate, and maintain the AI infrastructure. To address the current shortages in these jobs, the plan recommends several policy actions including establishing a national initiative to identify high priority occupations essential to AI infrastructure development, partnering with state and local governments and workforce system stakeholders to support the creation of industry-driven training programs that address workforce needs, including providing incentives to upskill incumbent employees into priority occupations, collaborating with education and workforce system stakeholders to expand programs to engage middle and high school students in priority AI infrastructure occupations, and expanding the use of registered apprenticeships in occupations essential to AI infrastructure.

DOL Reinstates PAID Program – The Department of Labor (DOL) has reinstated the Payroll Audit Independent Determination Program (PAID). This program was begun during the first Trump Administration. The PAID program allows employers to identify and correct potential Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) violations and avoid litigation. Under the program, employers conduct a self-audit and identify potential violations that occurred during the past two years, the employees and the time periods that they were affected, and calculate back wages owed to each employee. The employers would then contact the Wage and Hour Division (WHD) to report their findings and back wage calculations. The WHD would review and evaluate the information provided by employers and share information on the next steps to resolve the audit findings. Once the review is finalized, employers will have fifteen days to pay affected employees any back wages and other remedies that they are owed.

Once WHD completes its review of the self-audit submitted by an employer, it would issue a summary of unpaid wages along with forms describing the settlement that would be distributed to affected employees. The employees would have the option of accepting or declining the payment. The employer would be prohibited from retaliating against employees who do not accept the payment.

The PAID program was started in 2018 and in July 2020, the DOL stated that the program resulted in more than $7 million in back wages being paid to over 11,000 employees. The program was discontinued in January 2021 by the Biden Administration which believed it “denied workers their rights.” The program would not relieve employers from potential liability under state laws.

Senate Confirms EEOC Acting Chair – The Senate confirmed Andrea R. Lucas to serve a second term on the Equal Employment Opportunity Commission (EEOC) by a vote of 52 -45. President Trump appointed her as the EEOC acting chair. Upon being confirmed, Ms. Lucas stated, “I remain committed to enacting the bold civil rights agenda laid forth by President Trump, ensuring equal justice under the law, and focusing on the restoration of equal opportunity, merit, and colorblind equality for all members of the American workforce.” EEOC commissioners serve five-year terms.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.