Last month, President Biden issued an Executive Order that seeks to both seize on the potential for artificial intelligence (AI) and manage its risks. The Order has a broad reach that will affect the use of AI in education, healthcare, and government. Additionally, this Order will impact AI’s effect on consumers.
The Order further acknowledges that AI offers American workers the promise of improved productivity but also creates the risk of increased workplace surveillance, bias, and job displacement. The Biden Administration is therefore directing the Department of Labor (DOL) to do the following:
It is unclear at this time what the DOL will do specifically in response to these mandates. But employers should be prepared for increased scrutiny if they utilize AI. As a general principle, employers should avoid completely turning over certain functions to AI. While AI will streamline these areas that are sometimes burdensome for employers, overly relying on it creates the potential for oversight on legal obligations to employees.
With respect to hiring, AI poses the risk that candidates of a certain race, gender, age or other protected group are disproportionately impacted, leading to possible claims of disparate impact under Title VII of the Civil Rights Act or other state and federal laws against workplace discrimination. Employers who use AI in hiring should be limiting its overall use and consider restricting AI to evaluating objective applicant or hiring criteria such as minimum educational or experience requirements. Even then, employers should strongly consider tracking the demographics of their candidates and hires to ensure there is no disparate impact. Employers should also implement systems to ensure that the hiring process at least in part relies on criteria that are not a product of AI.
Using AI to analyze worker performance and productivity will also pose the risk of certain groups being unfairly scrutinized, in addition to potentially creating flaws in compensating employees fairly. State and federal wage and hour laws make it critical that employers appropriately classify their employees and pay them accordingly. As with hiring, while AI will streamline evaluation and payroll processes, employers should consider using additional resources, including but not limited to human review and general oversight, to ensure that employees are compensated fairly and accurately. Well-documented policies and procedures regarding compensation are important to minimize the unintended impacts of AI use.
Using AI to monitor employees will also come with scrutiny from state and federal agencies such as the National Labor Relations Board as such monitoring comes with the potential that employers may be interfering with employees protected concerted activity. Employers’ monitoring of their workforce will likely be limited under the DOL guidance, and such monitoring should focus narrowly on productivity and performance. Employers should avoid monitoring communications between employees under almost any circumstance.
The Executive Order’s specific mandates are still unclear, but employers should be proactive and start considering what will be required of them when the guidance is rolled out, likely at the beginning of 2024. As with all new developments in labor and employment law, managers and HR professionals would be wise to consult an attorney to navigate these new and evolving requirements.
Michael Luchsinger is a shareholder at Segal McCambridge. He may be reached at MLuchsinger@SMSM.com.
Geoffrey Leskie is a shareholder at Segal McCambridge. He may be reached at gleskie@smsm.com.
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