What’s New?

New Guidance on Employers’ Use of Artificial Intelligence

by Jennifer Shaw and Melissa Whitehead | | May 28, 2024

The use of artificial intelligence (“AI”) is on the rise everywhere – including in the workplace. Although it can be a useful time-saving tool, employers must ensure that their use of AI does not violate applicable employment laws.

Let’s start with the basics.  What is AI?  In its simplest terms, artificial intelligence is the science of making machines that can think like humans, and do things that are considered “smart.” AI technology can process large amounts of data in many ways that humans cannot. The goal for AI is to be able to recognize patterns, make decisions, and judge—just like humans.

So, what’s the problem?  Well, machines aren’t humans… and employers must stay on top of the rules to avoid violating the law. For example, if the use of AI tools to screen job applications results in the rejection of a disproportionate number of applicants because of their race, then the employer could be liable for discrimination. The good news is that the government is finally offering guidance to help employers minimize their risk.

President Biden’s Executive Order

On October 30, 2023, President Biden issued an “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The Order emphasized that the use of AI in the workplace must “advance[] equity and civil rights,” and not undermine job protections or lessen job quality. The White House called on the Department of Labor (“DOL”) to publish principles and best practices for employers to “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” You can read the Executive Order here.

The DOL’s Guidance

In response to the White House’s directive, on May 16, 2024, the DOL released the “Department of Labor’s Artificial Intelligence and Worker Well-being: Principles for Developers and Employers,” listing the following principles as a “guiding framework” for employers using AI:

  • Centering worker empowerment
  • Ethically developing AI
  • Establishing AI governance and human oversight
  • Ensuring transparency in AI use
  • Protecting labor and employment rights
  • Using AI to enable workers
  • Supporting workers impacted by AI
  • Ensuring responsible use of worker data

The DOL instructs employers to customize these principles to their own workplaces, with input from workers. You can read the DOL guidance here.

California’s Proposed Regulations

On May 17, 2024, California’s Civil Rights Council proposed regulations and amendments to govern the use of AI in the workplace. Among other things, the proposed regulations:

  • Clarify that employers may not use an automated decision-making system if doing so results in the mistreatment of applicants or employees based on protected characteristics, such as race or sex
  • Require employers and other covered entities to maintain employment records, including automated decision-making data, for a minimum of four years
  • Affirm that the use of an automated decision-making system alone does not replace the requirement for an individualized assessment when considering an applicant’s criminal history
  • Clarify that third parties are prohibited from aiding and abetting employment discrimination, including through the design, sale, or use of an automated decision-making system
  • Add definitions for key terms used in the proposed regulations, such as “automated-decision system,” “adverse impact,” and “proxy”

The proposed regulations are open for public comment until July 18, 2024. You can read the Civil Rights Department’s Press Release here, and the proposed regulations here.

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What should you do now? First, audit your current use of AI tools to ensure they don’t run afoul of the principles announced in the documents referenced above.  Also, start learning how AI may apply to your workplace, and how you can best take advantage of the new technology.  Finally, if you haven’t done so already, it’s time to put together some policies and procedures that are tailored to your practices. 

We know…it’s not as if you don’t already have enough to do…

More to come.

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