New DOL Guidance Cautions Against Over-Reliance on AI for Compliance
May 3, 2024
This week the White House announced " Key AI Actions 180 Days Following President Biden's Landmark Executive Order" to demonstrate action on AI regulation. Shortly afterward, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) and Office of Federal Contract Compliance Programs (OFCCP) released guidance documents regarding the use of artificial intelligence (AI) in the workplace.
The Wage and Hour Division issued aField Assistance Bulletinto guide investigators and staff on enforcement positions and policy clarifications. Although addressed to WHD investigators,the document essentially provides guidance that employers using AI to monitor or augment employees' work must adhere to protections ensuring workers are compensated for their hours worked, as defined under the Fair Labor Standards Act (FLSA) and other laws. Although not surprising, the guidance reinforces AI application under current law. Key takeaways:
Employers must ensure proper compensation for employees if AI tools are used for scheduling, timekeeping, tracking, or wage calculation. It recommends practices such as human oversight to ensure AI tools or systems accurately calculate minimum wages, regular rates, and overtime premiums, as well as track work, break, and waiting times.
If AI is used to process leave requests, the FAB addresses risks under the Family and Medical Leave Act (FMLA). Specifically, AI can create potential risks of violating FMLA certification requirements and the FAB warns against using AI to target FMLA leave users for retaliation or to discourage such leave.
Under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which mandates reasonable break time and space for nursing employees, the FAB states that AI systems restricting pump breaks, penalizing productivity, or requiring makeup hours would violate FLSA.
The Office of Federal Contract Compliance Programs issued new guidance on the use of AI and other technology-based hiring systems in federal contractor employment processes. The guidance emphasizes that federal contractors must ensure that they do not discriminate in employment and that they actively foster an environment where employees and applicants are treated equitably, regardless of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. Furthermore, OFCCP stresses that prohibitions on discriminating in employment extend to federal contractors’ use of AI in employment decisions.
Background: These guidance documents are in response to President Biden’s Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” issued on October 30, 2023. The AI Executive Order directed the DOL to develop best practices for employers, agencies, and federal contractors.
Outlook: Employers should conduct a review of wage and hour practices, as well as an assessment of AI tools used to track employee work hours. Furthermore, as Congress has not yet enacted comprehensive federal AI legislation, employers should prepare for more federal agency guidance, including a DOL report on how the government can support workers displaced by AI. In addition, anticipate state legislatures introducing their own AI-related laws. State-level legislation may address various aspects of AI use, including its impact on employment decisions, anti-discrimination measures, and fair labor practices.
