DOL Issues Guidance on Workplace AI

The guidance, delivered as a Field Assistance Bulletin (FAB), provides insight into how the DOL views the use of AI in the workplace, as well as its potential enforcement priorities.

Among other things, the DOL guidance indicates that employers may be held liable for the unlawful conduct of AI systems or tools they use, even if those systems or tools were designed by a third-party software developer. In other words, it will not be a defense from liability for an employer to claim that they don’t know how an AI system operates. It is therefore critical for employers to understand how these tools work, including the factors the tools consider when screening resumes or evaluating employee performance, and to implement appropriate procedural safeguards to ensure that AI-influenced employment decisions are based on clear and lawful criteria.

Other notable takeaways from the FAB include:

Fair Labor Standards Act (FLSA)

The FAB identifies a number of potential AI uses in the workplace, such as monitoring employee productivity, tracking employee locations, and automatically populating employee work schedules and break times. The FAB cautions that such usage should be overseen by the employer to ensure compliance with the FLSA. For example, non-exempt employees must be paid for all hours worked. AI software which incorrectly categorizes time as non-compensable based on productivity may inadvertently violate the FLSA. Similarly, AI software which automatically populates employee non-compensable break time may not capture employees who skip their breaks on particular days. 

Family and Medical Leave Act (FMLA)

The FAB also noted that employers use AI to process and evaluate FMLA leave requests and certifications. Such practices present a risk of systematic violations, such as by automatically penalizing employees for missing FMLA certification deadlines without accounting for circumstances permitting additional time for such submissions. 

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Under the PUMP Act, most nursing employees have the right to reasonable break time and space for expressing breast milk while at work. The FAB reminds employers that employee-tracking AI software may inadvertently penalize employees for making use of this time, such as by artificially limiting the length, frequency, or time of the breaks.

Employee Polygraph Protection Act (EPPA)

The EPPA generally prohibits the use of private employer lie detector tests on employees. The DOL has taken the position that certain AI technologies that monitor employee eye measurements, voice, and other body movements that could indicate if an employee is lying could likewise violate the EPPA, depending on the circumstances of their use. 

Surveillance and Protected Activity

Lastly, the FAB notes that AI software could be used for purposes of surveillance and that actions based on said surveillance may violate anti-retaliation prohibitions contained in federal labor and employment statutes. For instance, software which predicts the likelihood of a particular location to unionize (such as by analyzing employee surveys and data) might chill such activity and constitute unlawful retaliation. 

Takeaways

The FAB primarily encourages human oversight of workplace AI tools. While the opinions set forth in the FAB itself are not formal rules, they do provide guidance directed to DOL field staff responsible for enforcing certain federal laws. Thus, employers are cautioned to carefully review their current AI tools with counsel to evaluate (1) whether they are in compliance with federal labor and employment laws and (2) if not, how to modify their AI tools to ensure compliance.

The ArentFox Schiff Labor, Employment & OSHA Practice and the AI Industry Group will continue to monitor developments in this area. If you have any questions, please contact the authors or the ArentFox Schiff professional who regularly handles your matters.