EMPLOYMENT CORNER

The US Department of Labor (“DOL”) has recently issued two sets of guidance for employers utilizing artificial intelligence (“AI”) in the workplace. While AI technology can help increase productivity and efficiency in employer’s decision-making, these employers are still obligated to comply with employment-related state and federal laws. 

The first set of guidance issued by The Office of Federal Contract Compliance Programs (“OFCCP”) reminds federal contractors and subcontractors that they are not exempt from Equal Employment Opportunity (“EEO”) compliance and non-discrimination rules. The OFCCP outlines some “promising practices” that employers can incorporate to avoid potential harm to employees as a result of the use of AI. While these practices are not required by the OFCCP, they are highly recommended. Among other practices, the OFCCP encourages employers to: (1) provide proper disclosures to applicants regarding the use of AI in the hiring process; (2) routinely monitor and analyze where the use of the AI system may be causing a disparate or adverse impact, and (3) maintain proper documentation regarding the data used in implementing the AI system.

The Wage and Hour Division (“WHD”) issued the second set of guidance to employers, focusing on compliance with federal labor laws and clarified that such legal obligations apply regardless of the employers’ use of AI. WHD strongly encourages human supervision of the employer’s AI systems. Importantly, the WHD focuses on the use of AI in monitoring tools used to track employees work productivity/hours worked and calculate wages. Such can subject employers to liability for non-compliance and encourage that these AI systems be overseen and regulated by proper human supervision.