Written By:
Kenneth A. Rosenberg and Brian J. Frederick
Fox Rothschild LLP

As employers have increasingly used artificial intelligence (AI) and other Automated Employment Decision Tools (AEDTs) to assist human resource professionals and hiring managers in reviewing voluminous resumes, federal and state governmental authorities have become concerned that these tools are disproportionately screening out female and minority applicants.

To address the adverse impact that AI and AEDTs may be causing in violation of federal and state anti-discrimination laws, state and local legislatures across the country have begun enacting and/or proposing legislation and regulations to combat these issues. New Jersey’s Legislature recently introduced a pair of bills in the Assembly to address the potential discriminatory impact the use of such technology may have on prospective job candidates. 

New Jersey Assembly Bill 3854
On February 22, 2024, A. 3854 was introduced in the New Jersey Legislature with the stated purpose of regulating the use of AEDTs during the hiring process to minimize employment discrimination.

AEDTs are defined broadly in A. 3854 to mean “any system the function of which is governed by statistical theory, or systems the parameters of which are defined by systems, including inferential methodologies, linear regression, neural networks, decision trees, random forests, and other learning algorithms, which automatically filter candidates or prospective candidates for hire or for any term, condition, or privilege of employment in a way that establishes a preferred candidate or candidates.” This definition would encompass AI programs used to filter and screen prospective job candidates.

The proposed legislation would prohibit the sale of any AEDTs in New Jersey unless:

1. The AEDT is the subject of a bias audit conducted in the year prior to the sale of the tool or the offering of it for sale.
2. The sale of the AEDT includes, at no additional cost, an annual bias audit service that provides the results of that audit to the purchaser.
3. The AEDT is sold or offered for sale with a notice stating that the AEDT is subject to the provisions of this act.

A “bias audit” is defined as “an impartial evaluation, including but not limited to testing, of an [AEDT] to assess its predicted compliance with the provisions of the ‘Law Against Discrimination,’ P.L.1945, c.169 (C.10:5-1 et seq.), and any other applicable law relating to discrimination in employment.”

In addition to requirements concerning the sale of AEDTs, A. 3854 provides that New Jersey employers who use AEDTs to screen candidates must post a summary of the most recent bias audit on their websites.

Further, the proposed legislation would require any person or entity that uses AEDTs to screen a candidate to notify the candidate of the following within 30 days:

1. That an AEDT, subject to an audit for bias pursuant to this act, was used in connection with the candidate’s candidacy.
2. The specific job qualifications or characteristics that an AEDT was used to assess in the candidate.
3. Upon request of the candidate, the source of the data collected and the data retention policy of the employer.

Violations are punishable by civil penalties of $500 for the first violation, and each additional violation occurring on that same day, and a penalty of between $500 and $1,500 for each subsequent violation. Failure to give the required notice to job candidates within 30 days would be a violation, and every subsequent 30-day period in which notice was not provided would be considered a separate violation.

Although Assembly Bill 3854 covers a number of topics relating to employers’ use of AEDTs, there are some significant unknowns including whether, and under what circumstances, the underlying bias audit will be subject to full disclosure and who may perform the required bias audit.

However, if New Jersey follows NYC’s recently enacted Local Law 144 (which already requires bias audits of AEDTs), then employers will be required to use independent auditors to perform the audit. Under NYC Local Law 144, independent auditors are persons or groups who (i) were not involved in the use, development or distribution of the AEDT, (ii) do not have an employment relationship with the employer or employment agency that seeks to use the AEDT, or the vendor who developed or distributed the AEDT, and (iii) do not have a direct financial interest, or material indirect interest, in the employer, employment agency or vendor.

Regardless of the parameters of permissible auditors, it would be prudent for employers, and vendors alike, to consult with attorneys who are experienced with adverse impact studies to assist in developing, conducting and summarizing the results of the bias audit. This is particularly important to enable employers and vendors to not only obtain their insight regarding relevant state and federal anti-discrimination laws, but also to potentially obtain confidentiality of the bias audit process through the attorney-client privilege.

New Jersey Assembly Bill 3911
A. 3911 was introduced on February 27, 2024. It seeks to regulate the use of AI analysis of job applicants’ recorded video interviews that are submitted to employers. Pursuant to the proposed legislation, New Jersey employers that request applicants to record video interviews and then use an AI program to analyze the applicant-submitted video must:

1. Notify an applicant before the interview that AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position.
2. Provide an applicant with information before the interview explaining how the AI works and what general types of characteristics it uses to evaluate applicants.
3. Obtain, before the interview, written consent, which may be electronic, from the applicant to be evaluated by the AI program as described in the information provided.

An employer must take these steps prior to requesting the applicant submit a video interview.
Significantly, the proposed legislation provides that New Jersey employers who use AI analysis of recorded video interviews must collect data concerning (i) the race and ethnicity of applicants who are and are not afforded the opportunity for an in-person interview after the use of AI analysis; and (ii) the race and ethnicity of applicants who are offered a position or hired.

However, the proposed legislation does not provide the manner or method in which this demographic information is to be collected from applicants. Ideally, this required information would be collected from the applicant prior to the recorded video interview via voluntary self-identification, otherwise employers will have to use less accurate methods such as visual identification.

The collected demographic data must then be reported annually by the employer to the New Jersey Department of Labor and Workforce Development (NJ DOL). The NJ DOL would be responsible for analyzing the demographic data and reporting to the Governor and the Legislature each year whether the data discloses a racial bias in the use of AI.
If the law passes, employers should perform a disparate impact analysis of the data gathered prior to submission to the DOL to enable them to determine whether adverse impact exists, and, if so, what steps can be taken to remediate any biases during the hiring process. As with the bias audit requirement proposed by A. 3854, employers should consult with experienced attorneys before conducting the disparate impact analysis. They can assist in conducting the review and potentially shield it through the attorney-client privilege.

Under the proposed legislation, employers who request applicants to submit video recorded interviews would not be permitted to share an applicant’s video except with a service provider whose expertise or technology is necessary to evaluate the applicant’s fitness for a position. Further, upon receipt of a request from an applicant to delete the video recorded interview, employers would have 30 days to comply and instruct any other persons who received copies of the applicant’s video interview to do the same. This could be problematic for reporting purposes if the demographic data is not collected in advance. Moreover, it is unclear if the video recorded interview data could be used to evaluate the candidate if they provide their consent and later request the video be deleted.

Violations of the act would carry civil penalties of $500 for a first offense and $1,000 for any subsequent offense.

Takeaways
The foregoing legislation has merely been proposed by the New Jersey State Legislature at this time. Still, employers who use, or are contemplating using, AEDTs in their hiring process should be mindful of the pending legislation and contemplate procedures and policies for compliance should it be enacted. Regardless of whether either bill is enacted, it is likely that New Jersey will at some point in the not too distant future follow the lead of other jurisdictions, such as Illinois and New York City, and enact laws aimed at regulating employers’ use of AEDTs in the hiring and/or employment decision making process. Other states including, Vermont, California, and Massachusetts, have similarly proposed laws to address the use of AEDTs.
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Employers should be prepared for this reality and take steps to affirmatively ensure any AEDTs currently in use are not having a discriminatory impact on any protected class in violation of state or federal laws.
For more information, please contact Kenneth A. Rosenberg at [email protected] or 973-994-7510, Brian J. Frederick at [email protected] or 973-548-3398, or another member of Fox Rothschild’s national Labor & Employment Department.

Understanding a HEC-RAS Analysis and Determining Where on Your Land You Can Build.

Written By:
The Land Use Department
LAN Associates

FEMA Maps, New Jersey Department of Environmental Protection (NJDEP) maps and regulations, and our changing climate, when it comes to determining legal requirements surrounding flood hazard risks, there are a lot of factors at play. There are also multiple methods to determine these risks and ensure compliance with relevant regulations. It’s safe to say that determining where you can and cannot build or engage in other regulated activities on a parcel of land is complicated.

So, what is the most accurate method of determining flood hazard risks? If you want to maximize the buildable space on a parcel of land by identifying precise boundaries of flood hazard areas, you should consider doing what is called a HEC-RAS analysis.                                                                      
What Is a HEC-RAS Flood Hazard Analysis, and How Does it Work?

At a very basic level, a HEC-RAS Flood Hazard Analysis simulates the flow of natural riverbeds or artificial channels to determine the flood hazard area by calculation. Under the direction of a licensed engineer, a surveying team goes to the site to take measurements of a watercourse and the surrounding land. This information, often in conjunction with additional information from the United States Geological Survey (USGS), is then used to create a model of the stream and surrounding area. Several other calculations are performed to determine the amount of water to “run” through the model, which will ultimately create a flood hazard map that is fine-tuned based on local conditions. The investigation and surveying requirements of a HEC-RAS Flood Analysis are more intensive because the goal is to get an accurate assessment of the conditions of the watercourse and the risks of constructing a project nearby.  
        
How is a HEC-RAS Flood Hazard Analysis Different from Other Methods?

Streams or watercourses not studied by FEMA or NJDEP require a determination of the flood hazard area associated with these watercourses. In New Jersey, the DEP requires the use of one of six methods to determine this, two of which utilize a HEC-RAS Analysis, Method 4 and Method 6, as stipulated by the Flood Hazard Area Control Act Rules at N.J.A.C. 7:13. These two methods require a licensed engineer to perform calculations to determine flood elevations and are thus generally considered the most accurate. Method 5 can also be used to determine a flood elevation, but it is sometimes considered overly conservative. Oftentimes, the most accurate calculations that clearly define the flood hazard area on your site are the most prudent course of action, especially since building in a flood hazard area is risky, time-consuming, and expensive. 

Method 4 to Determine the Flood Hazard Area

When determining a flood hazard area in New Jersey, Method 4 is used when you have some of the information you need available through existing mappings. It utilizes flow information published by FEMA in the analysis instead of calculating this information separately but still includes an investigation of missing FEMA information regarding the floodway, one of the two areas that make up a flood hazard area. This is a very important factor to consider when planning a project due to the more stringent regulations of the floodway.

Method 5 to Determine the Flood Hazard Area

Method 5 is another way to determine a flood hazard area in New Jersey that can be used in the case of unstudied streams. It does not require a HEC-RAS analysis. However, it is a conservative estimate that can lead to a large approximation of the flood hazard area, and it does not calculate the limits of the floodway. The drawback to this method is that it has greater potential to declare parts of land as unavailable for development unnecessarily.
      
Method 6 to Determine the Flood Hazard Area

When determining a flood hazard area in New Jersey, Method 6 is used when there is no information published by the DEP or FEMA. Just because a stream does not have any published information on it does not mean that the stream doesn’t have a flood hazard area. There are a surprising number of streams that are “unstudied” but still fall under NJDEP jurisdiction. Method 6 is the most accurate method to determine the flood hazard area and floodway limits in these cases because it involves site-specific measurements and calculations.
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If Information on Flood Hazard Risks is Already Available, is HEC-RAS Necessary?

Existing information about flood risks on a particular parcel of land may be available; however, the data may be incomplete. Sometimes information for a watercourse only exists up to a point, even though the watercourse continues to flow through your site, or sometimes a site can contain multiple watercourses, but only one is studied. In these cases, a HEC-RAS analysis will fill in the gaps. Even if FEMA or DEP mappings exist for the site, Methods 4 and 6 can still be used to produce more detailed results of the flood hazard area limits, provided any DEP mapping for the site is dated prior to January 24, 2013. If a DEP map was published after that date, the limits of the flood hazard area set by that map must be used. Typically, a HEC-RAS analysis is used when there is not enough published information to determine the flood hazard elevation, but it may also be used to take a closer look at and potentially reduce the flood hazard area on a site. This can free up more land for development.
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What about FEMA Maps? Aren’t They the Standard for Determining Flood Hazard Zones?

FEMA maps do not cover every water course. Many tributaries were not studied when FEMA assembled its maps. Additionally, DEP mapping is also used as a standard in New Jersey, but these same issues can arise. This discrepancy has led the DEP to develop different methods for determining the flood hazard area on a site in order to ensure that each site can get an accurate assessment of where the danger of floods lies.

Can Doing a HEC-RAS Analysis to Determine Flood Risks Help the Permitting Process?

Yes, in certain situations, doing a HEC-RAS analysis can help you obtain permits to undertake regulated activities such as construction or the creation of a nonpermeable surface. Many sites contain streams that do not have published flood information but are still regulated, so a flood hazard area must be determined in order to go through the permitting process. The HEC-RAS analysis also produces the limits of the floodway, and if your project can stay outside of this area, the permitting process may become quicker and easier.

When is a HEC-RAS Flood Hazard Analysis Needed?

A HEC-RAS Flood Hazard Analysis is useful when either incomplete or absent flood hazard information relating to a parcel of land is creating risk or hindering development. Developers may want to do a HEC-RAS analysis instead of an approximate analysis because they want a more accurate assessment of the regulated areas on site. Hiring a professional engineer to use HEC-RAS to analyze the exact locations of flood zones on your property may increase the buildable space available for your construction project, which can save you money in the long run.

Can HEC-RAS Flood Hazard Analysis Change my Requirements to Purchase Flood Insurance?

In short, having a HEC-RAS Flood Hazard Analysis performed will not change your requirements to purchase flood insurance. Flood insurance requirements are determined by FEMA’s National Flood Insurance Program, and the purpose of a HEC-RAS analysis is to determine the flood hazard elevation on a site to comply with NJDEP requirements. The two are separate entities and function separately. FEMA does offer a process to reduce or remove the flood hazard area on your property through a LOMA of LOMR, but that is a different discussion.    

Who Do I need to Contact to Get a HEC-RAS Flood Hazard Analysis Done?

A HEC-RAS Flood Hazard Analysis has to be performed by a licensed engineer who has a background in water resource management and hydrologic and hydraulic calculations. LAN Associates has a dedicated team of professionals who specialize in this discipline, but not all engineering firms have someone who meets these requirements on staff. It is important that you contact a qualified firm.

Can LAN Associates Help Complete a HEC-RAS Analysis for my Property?

​Yes, the engineers at LAN Associates have both the qualifications and required credentials to provide an in-depth HEC-RAS analysis of your property to determine if it presents a flood hazard risk and where on a property is safe to build.            

Written By:
David H. Nachman, Esq.
Ludka Zimovcak, Esq.
Snehal Batra, Esq.
Samantha Oberstein, Esq.
Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C.

Completing a medical residency in the United States is a monumental achievement for international medical graduates (IMGs). However, transitioning from residency to practicing medicine or furthering your career in the U.S. involves several critical steps, especially if you’re looking to secure a Green Card. Here’s a structured approach to help IMGs navigate this important phase.

1. Evaluate Visa Options

Most IMGs complete their residency on a J-1 or H-1B visa. Each of these visas has specific requirements and implications for your journey toward permanent residency:

J-1 Visa Holders: If you trained in the U.S. under a J-1 visa, you are subject to a two-year home-country physical presence requirement. You can waive this requirement by obtaining a waiver through programs like the Conrad 30 Waiver Program, which involves agreeing to work for three years in a medically underserved area.

H-1B Visa Holders: If your residency was under an H-1B visa, you might have a smoother transition. The H-1B visa allows you to work in the U.S. in a specialty occupation and can be a bridge to applying for a Green Card through employment.

2. Consider Employment-based Green Card Options

As an IMG, you can explore several pathways to a Green Card based on employment:

EB-2 Visa: If you possess an advanced degree or can demonstrate exceptional ability in the sciences, arts, or business, you may qualify for an EB-2 visa. A National Interest Waiver (as discussed earlier) could be an option under this category to bypass labor certification requirements.

EB-3 Visa: This category is for skilled workers, professionals, or other workers. If you do not qualify for an EB-2, this might be a viable alternative.

3. Secure a Job Offer in a Medically Underserved Area

Working in a medically underserved area not only helps meet critical healthcare needs but can also expedite your Green Card process, particularly under programs like the Conrad 30. Hospitals and clinics in these areas often sponsor visas and Green Cards due to the high demand for medical professionals.

4. Prepare and File Your Green Card Application

Once you have a job offer and have decided on the appropriate visa category, you’ll need to prepare and file your Green Card application. This process involves several steps, including:

Adjustment of Status (I-485) or Consular Processing: Depending on whether you are in the U.S. or abroad.
Application for Employment Authorization Document (EAD) and Advance Parole (AP), if needed.

5. Continuous Professional Development

While your Green Card application is pending, continue to enhance your qualifications. This could involve obtaining board certifications, participating in additional fellowships, or engaging in research. These activities not only enrich your resume but also strengthen your petition for permanent residency.

Navigating the post-residency phase as an international medical graduate involves careful planning and an understanding of both immigration and professional pathways. With the right strategy, IMGs can transition effectively from residency to a successful career in medicine within the U.S., while also securing their status as permanent residents.

Contact Our Experienced U.S Immigration Lawyers At NPZ Law Group
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If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing [email protected] or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.