The Employer’s Wage and Hour Advisor

The DOL’s AI Guidelines emphasize: (1) ethical development; (2) transparency and meaningful worker engagement in AI system design, use, governance, and oversight; (3) protection of workers’ rights; and (4) use of AI to enhance work. The guidelines were issued in response to President Biden’s Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” (“AI Executive Order”), issued on October 30, 2023, which directed the DOL to develop best practices for employers, agencies, and federal contractors.

The DOL’s AI Guidelines apply during the entire lifecycle of AI, from development, testing and deployment of AI systems in the workplace, to oversight, use and auditing. The AI Guidelines are applicable to all sectors and are intended to be mutually reinforcing, though not all principles will apply to the same extent in every industry or workplace. Importantly, the DOL states that “[t]he Principles are not intended to be an exhaustive list but instead a guiding framework for businesses. AI developers and employers should review and customize the best practices based on their own context and with input from workers.” The AI Guidelines include:

• Centering Worker Empowerment: The AI Guidelines state that 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. This principle reflects a strong emphasis on empowering workers and their representatives. Employers should follow related developments at the National Labor Relations Board, which may rely on this principle as the basis for issuing unfair labor practice complaints alleging violations of the National Labor Relations Act.
• Ethically Developing AI: The AI Guidelines emphasize that AI systems should be designed, developed, and trained in a way that protects workers.
• Establishing AI Governance and Human Oversight: The AI Guidelines also stress that organizations should have clear governance systems, procedures, human oversight, and evaluation processes for AI systems for use in the workplace.
• 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. Technical guidance issued from the U.S. Equal Employment Opportunity Commission also contains a similar provision regarding notice of use and function of AI tools in employment decisions. The EEOC also recommends providing alternatives unless this would cause undue hardship.
• 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.
• 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 workers during job transitions related to AI. The DOL provides no details on how employers can support workers displaced by AI. In fact, the AI Executive Order directed the DOL to issue a report on how the government can support workers displaced by AI by the end of April of 2024, but the DOL has not yet issued the report.
• 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.

The AI Guidelines also stress that:

Reliance on automated timekeeping and monitoring systems without proper human oversight, can create potential compliance challenges with respect to determining hours worked for purposes of federal wage and hour laws. An AI program that incorrectly categorizes time as non-compensable work hours based on its analysis of worker activity, productivity, or performance could result in a failure to pay wages for all hours worked.

For example, an employee usually takes a 30-minute unpaid meal break but skips the break on a particular day due to their workload. Without appropriate human oversight, a system that automatically deducts the break from the employee’s work hours based on the employee’s past time entries could result in the employer failing to properly record and pay the employee for hours worked, resulting in an FLSA violation.

AI Guidelines Key Takeaway

Ultimately, the DOL’s AI Guidelines show how the Department is attempting to regulate AI without new legislation from Congress. More AI guidance is expected in the future. The press release accompanying the DOL’s AI Guidelines notes that DOL “will soon provide employers and developers with best practices to consider as they implement the AI Guidelines.” Ultimately, the rapidly evolving regulatory landscape requires that employers and their counsel pay close attention to current and developing legal authority concerning AI.