US Department of Labor Reissues and Expands on Its AI Guidance for Employers

By Jordan Dunham - Shawe Rosenthal LLP

October 23, 2024

On October 16, 2024, the U.S. Department of Labor (“DOL”) released an updated Artificial Intelligence (“AI”) resource for employers, as well as developers, to assist them in avoiding potential harms to workers due to the use of AI and other technology. The document details practices and principles that employers may use to avoid concerns that could arise through the use of AI, and ways to avoid discriminatory or unfair treatment of employees.

Background

This resource was issued in response to President Biden’s October 30, 2023 Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which we discussed in a blog post. In this Executive Order, the White House directed the DOL to create principles and best practices for developers and employers in order to avoid discrimination and bias in decision-making processes as a consequence of utilizing AI in the workplace.

Prior to this latest release, the DOL has been hard at work issuing guidance on the growing use of AI and its effects on workers in the United States. On April 29, 2024, the DOL issued a Field Services Bulletin No. 2024-1 to provide guidance on the Fair Labor Standards Act, the Family and Medical Leave Act, and other workplace laws in light of the increasing use of artificial intelligence and other automated technologies in the workplace, as discussed in another of our blog posts. Then on May 16, 2024, the DOL issued an initial verison of its principles for employers (and developers) on the use of AI in the workplace, as we covered in a previous blog post.

And now, the DOL has unveiled a new website landing page and an updated guidebook: Artificial Intelligence and Worker Well-Being: Principles and Best Practices For Developers And Employers. The new guide restates and expands upon the eight principles that the DOL previously identified as areas of concern in the prior version of the guidebook, while retaining the same overarching theme: how to avoid negative effects on employees through adoption and use of AI in the workplace – notably placing an emphasis on employee input.

The Eight Principles:

1.  [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.
2.  Ethically Developing AI: AI systems should be designed, developed, and trained in a way that protects workers.
3.  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.
4.  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
5.  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.
6.  Using AI to Enable Workers: AI systems should assist, complement, and enable workers, and improve job quality.
7.  Supporting Workers Impacted by AI: Employers should support or upskill workers during job transitions related to AI.
8.  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 guide provides some substantive material on what employers should and should not do in order to provide adequate safeguards on automated systems. While the DOL does not recommend avoiding AI, it recommends that employers should avoid developing an over-reliance on AI as a tool by implementing secondary measures to ensure some level of human oversight with the goal of ultimately benefiting workers.

The DOL is careful to instruct its readers that the principles and practices outlined in the guide are helpful to employers, but the document is not an official or binding rule or stance by the DOL on employment practices. Accordingly, while the principles outlined in this guide or the previous Field Services Bulletin 2024-1 may be used as a reference, employers should consult their employment counsel with regard to the implementation of any AI policies or platforms.

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