The DOL’s AI Principles for Employers – An Emphasis on Worker Rights

By Fiona Ong - Shawe Rosenthal LLP

May 16, 2024

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.

www.shawe.com