On May 16, 2024, the U.S. Department of Labor issued principles for employers (and developers) on the use of AI in the workplace. And unsurprisingly, given the Biden Administration’s pro-worker approach to employment issues, the “North Star” of these principles is the involvement of workers and their representatives in the implementation of AI in the workplace.

The use of artificial intelligence has burgeoned across all aspects of our society, including in the workplace, which has forced employers to confront a myriad of new challenges. We gave an overview of many of these issues in our June 2023 E-Update article, “Generative AI in the Workplace – What Employers Need to Know.” On top of the logistical complications, employers must also be aware of the federal government’s intense interest in their use of AI in the employment context.

The DOL’s AI Principles were issued pursuant to President Biden’s Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence, which we discussed in a previous blog post. The EO directed the federal workforce agencies, including the DOL, to take actions to mitigate the risks of AI, promote workforce training and development, and, significantly, “support workers’ ability to bargain collectively.” Such actions included the development of principles and best practices regarding the workplace use of AI, intended to benefit workers by preventing employers from undercompensating workers, from unfair evaluation of applications, and – tellingly – from impinging on workers’ ability to organize.

As we also previously discussed, the federal workforce agencies have already targeted AI in various guidance, statements, and other resources. These include the Equal Employment Opportunity Commission, the DOL’s Office of Federal Contract Compliance Programs, and the National Labor Relations Board, as well as non-traditional agencies like the Department of Justice, the Consumer Financial Protection Bureau, and the Federal Trade Commission.

So what’s in the DOL’s Principles? Here’s the list (with some commentary from us):

  • [North Star] Centering Worker Empowerment: Workers and their representatives, especially those from underserved communities, should be informed of and have genuine input in the design, development, testing, training, use, and oversight of AI systems for use in the workplace. (Our comment – as noted above, this strong emphasis on the empowerment of workers and their representatives – read, unions – is consistent with President Biden’s pro-union stance. Employers can expect the NLRB to seize on this principle as a basis for charging employers with violations of the National Labor Relations Act, especially in light of the NLRB General Counsel’s previous pronouncements on this issue).
  • Ethically Developing AI: AI systems should be designed, developed, and trained in a way that protects workers. (As we have noted, AI systems may be biased, arising in different ways. This can occur from the individuals collecting the original data and training the AI tool, from the tool’s learning bias, or in the way the data is deployed).
  • Establishing AI Governance and Human Oversight: Organizations should have clear governance systems, procedures, human oversight, and evaluation processes for AI systems for use in the workplace. (We suggest that employers conduct training of employees using AI, as well as routine audits of the use of AI to ensure nondiscrimination and appropriate use).
  • Ensuring Transparency in AI Use: Employers should be transparent with workers and job seekers about the AI systems that are being used in the workplace. (We note that the EEOC further suggests that employers provide reasonable accommodations with regard to the use of AI, and ensure that workers and applicants know of the availability of such accommodations).
  • Protecting Labor and Employment Rights: AI systems should not violate or undermine workers’ right to organize, health and safety rights, wage and hour rights, and anti-discrimination and anti-retaliation protections. (Well, of course!)
  • Using AI to Enable Workers: AI systems should assist, complement, and enable workers, and improve job quality.
  • Supporting Workers Impacted by AI: Employers should support or upskill workers during job transitions related to AI. (The DOL obviously prefers that employers retain and retrain employees when introducing AI into the workplace – but the reality is that some workers will be replaced by AI tools. It is unclear how the DOL thinks employers should support such workers).
  • Ensuring Responsible Use of Worker Data: Workers’ data collected, used, or created by AI systems should be limited in scope and location, used only to support legitimate business aims, and protected and handled responsibly.

Employers need to be aware that there will be heightened attention on their use of AI from the DOL and its sister agencies. While these principles are not mandatory, employers can certainly expect that the DOL will likely find violations of the law where the principles are ignored.

Last month, many of us took a few moments out of our day to view the solar eclipse (with the proper eyewear, of course – which made me wonder about the workers’ compensation liability for eye injuries incurred from deficient protection during “watch parties” at work – but I digress). As you’ve no doubt heard, there are even some folks who will travel in order to experience “totality.” I’m sure work productivity across the nation took a bit of a hit that day. But what is not ok is to totally blow off a deposition in order to chase the eclipse – which is what happened in a discrimination case.

Continue Reading No, the Solar Eclipse Is Not a Good Reason to Skip a Deposition

On April 29, 2024, the Equal Employment Opportunity Commission issued its long-promised Enforcement Guidance on Harassment in the Workplace. The document updates and replaces existing EEOC resources on workplace harassment and unsurprisingly (under this pro-worker administration) takes a very broad approach to the topic. Of particular interest to employers, the EEOC also provides specific direction on what it would consider to be best practices for employers in preventing and addressing workplace harassment, including as to policies, training and investigations.

Continue Reading The EEOC’s New Harassment Guidance: What Employers Need to Know

On April 23, 2024, the Federal Trade Commission (FTC) voted 3-2 to issue a Final Rule banning nearly all non-compete clauses in employment agreements nationwide. As set forth in the FTC’s fact sheet, non-compete provisions are “an unfair method of competition” and therefore violate the Federal Trade Commission Act. The U.S. Chamber of Commerce, however, has already filed suit to block the Final Rule.

Continue Reading FTC Bans Nearly All Non-Compete Agreements – For Now…

On Tuesday, April 23, 2024, the United States Department of Labor (DOL) released a final rule raising the salary thresholds to qualify for overtime exemptions under the Fair Labor Standards Act (FLSA). The rule will become effective on July 1, 2024.

Continue Reading DOL Significantly Increases Salary Threshold for Overtime Eligibility

The U.S. Supreme Court, in a unanimous decision, has ruled that adverse employment actions need not be “significant” in order to constitute a violation of Title VII’s prohibition against discrimination. This ruling undercuts decades of court decisions that applied a heightened standard of harm, although recent federal appellate court rulings already showed a trend away from that standard.

Continue Reading Supreme Court Lowers the Bar for Title VII Discrimination Claims

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued a Final Rule and Interpretive Guidance to implement the relatively new Pregnant Workers Fairness Act (PWFA), which was enacted by Congress in December of 2022 and which already took effect on June 27, 2023. The Final Rule and Interpretive Guidance provide guidance, with many illustrative examples, on how the EEOC plans to interpret employers’ obligations under the PWFA – and in some cases, expands the obligations beyond even the heightened standards under the Americans with Disabilities Act.

Continue Reading The EEOC Releases Onerous Final Rule Implementing the Pregnant Workers Fairness Act

The Maryland General Assembly’s 2024 session ended at midnight on Monday, April 8. A number of employment bills that were passed will have a significant impact on employers, including another delay to the forthcoming paid family and medical leave insurance (FAMLI) program, a new wage range posting mandate, expanded pay stub notice requirements, and additional discrimination protections, including an expansion of the equal pay law. Employers will also face increased penalties for occupational safety and health violations. Additionally, there was a revision to the law restricting the use of non-compete agreements to make it applicable to certain health care providers and veterinarians.

Continue Reading New Employment Laws in Maryland – Changes to Paid Family and Medical Leave Insurance, Wage Range Posting Requirements, New Discrimination Protections and More (and a Webinar!)

According to some courts, no. According to the Equal Employment Opportunity Commission and other courts, yes. And the EEOC is being the squeaky wheel regarding its position, as evidenced by a recent settlement announcement.

Continue Reading Are Reasonable Accommodations Required for an Employee’s Commute?

Last year, in our October 2023 E-Update, we wrote about an employer who destroyed evidence that could have proved his new employee stole source code from his former employer that was used to create a “functionally equivalent” product by the new employer. Because of this bad behavior, a federal trial court entered a default judgment against the new employer (meaning that the employer lost the case without any consideration of the merits). But our admonition against destroying (bad) evidence goes both ways – as shown in a recent case before the U.S. Court of Appeals for the Ninth Circuit.

Continue Reading You Know That Destroying Evidence Can Get You in Trouble, Right?