On October 30, 2023, President Biden issued the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. Pursuant to the Executive Order, on May 16, 2024, the U.S. Department of Labor (DOL) published the following eight principles regarding the development and use of AI in the workplace:
- 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.
- Ethically Developing AI: AI systems should be designed, developed, and trained in a way that protects workers.
- 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.
- 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.
- 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 or upskill workers during job transitions related to AI.
- 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.
With the Executive Order and corresponding Principles, the Biden administration seeks to balance the innovative and transformative potential of AI with the risks that it poses to workers.
Considerations and Next Steps
The White House has stated that the Principles are a non-exhaustive, “guiding framework” that employers can implement as they see fit. While neither the Executive Order nor the Principles create new causes of action for current or prospective employees, the Executive Order makes clear that the Biden administration intends to use existing federal law to enforce its AI policy. The Order states that the U.S. Attorney General shall “coordinate with and support agencies in their implementation and enforcement of existing Federal laws to address civil rights and civil liberties violations and discrimination related to AI.”
Looking forward, the Department of Labor is expected to publish best practices for implementing the Principles. The DOL will also issue further guidance “to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections that ensure that workers are compensated for their hours worked as defined under the Fair Labor Standard Act…and other legal requirements.”
As employers consider the use of AI in managing their workforce, they should also keep in mind the EEOC’s 2023 guidance: employers can be found liable for using AI tools in employee selection if the result is a disparate impact on applicants based on protected characteristics, regardless of whether the tool was designed, or even administered, by the employer or a third party. (See our alert on this topic for more information.)
Summer associate Dominic Signa contributed to this blog post.
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