The Department of Labor (“DOL”) issued its first guidance on the use of artificial intelligence (“AI”) in the workplace on October 16, 2024. However, the DOL’s AI Principles and Best Practices should not be confused as a product of its rulemaking authority. Nor are the AI Principles and Best Practices considered binding law. Rather, the AI Principles and Best Practices is a guide issued by the DOL so that employers can avoid violating applicable employment laws when utilizing AI in their business.
The Best Practice’s Eight Principles
The DOL’s AI Principles and Best Practices contain eight principles, with the first principle being designated as the “North Star” for the use of AI in the workplace. The eight principles are:
- Centering worker empowerment.
- Ethically developing AI.
- Establishing AI governance and human oversight.
- Ensuring transparency in AI use.
- Protecting labor and employment rights.
- Using AI to enable workers.
- Supporting workers impacted by AI.
- Ensuring responsible use of worker data.
What Do These Principles Mean for Businesses?
The first and most important principle, as designated by the DOL, encourages employers and developers of AI to work with employees in the development of such AI programs, including, but not limited to, the design, testing, training, and use stages. The second and third principles, closely associated with the first, strongly suggest that AI systems be trained and developed in a manner that protects workers, and that there exists a continued oversight and evaluation process for AI’s implementation in the workplace. The DOL guidance also recommends that AI systems in the workplace be audited to ensure compliance with applicable employment laws.
Furthermore, internal governance is a point of concern for the DOL, as it cautions employers to implement policies and limits as to how and to what extent AI is utilized in the workplace. Another caution from the DOL is that while AI can be used to make recommendations in the workplace, actual decision-making should remain in the purview of actual employees. The fourth principle comes as no surprise, but it informs companies that if AI is to be used in the workplace, it should be communicated to both employees and applicants of its use and the role AI will have in the workplace.
Principles five, six, seven, and eight can all be grouped together as principles to generally protect workers’ rights. The principles generally caution companies and employers that the use and implementation of AI in the workplace should not infringe upon workers’ rights. This includes, but is not limited to, the right to organize, the right to a safe workplace, wage and hour rights, and anti-retaliation/discrimination protections. In addition, the DOL recommends that AI in the workplace be used to assist, complement, and enable workers, rather than outright replace them.
Considering the impact AI may have in the workplace, especially as it relates to the potential replacement of workers, the DOL recommends that companies support, upskill, or provide transition assistance to workers impacted by the implementation of AI. Finally, employers should ensure that any worker data collected, used, or created by AI systems is limited in scope and that such data collection is used to support legitimate business needs and handled responsibly.
AI Pitfalls and Next Steps
While AI can be used to make certain matters of employment administration easier and help both businesses and their employees, there are some common pitfalls in AI’s implementation in the workplace. For example, many businesses may use AI to initially review a large number of job applications. Depending on how the AI system is trained, however, it may cause a disproportionate number of applicants from a protected class to be unfairly screened out, potentially leading to the possibility of a disparate impact claim. In addition, if a company uses an AI to assist with monitoring work performance and determining pay raises or promotions, that can also potentially lead to decisions where one protected class is disproportionately passed over for raises and/or promotions in comparison to others.
To avoid some of these common pitfalls, it is recommended that, while AI may be utilized in the workplace, the training of AI systems be routine and that there is continuous human oversight and decision-making. Additionally, the DOL has taken a position in line with employees and employee rights, which may lead to an uptick in scrutiny of AI in the workplace. The DOL AI Principles is only an informal guidance, but it will likely pave the way for more formal decision and rulemaking in the future.
Berenzweig Leonard will continue to monitor updates and developments related to the DOL’s AI Principles and Best Practices. Please contact us if you have questions or concerns about how your company plans to utilize AI in the workplace, or if you have questions regarding your company’s current use of AI.
Samy Abdallah is an Associate Attorney at Berenzweig Leonard. He can be reached at sabdallah@berenzweiglaw.com.