Because of the complexities and wide-ranging effects of artificial intelligence (AI), the Biden administration and Congress have cautiously approached regulating the technology. At this juncture, it isn’t clear which administrative agency and/or legislators will take the lead on regulating AI in the workplace at the federal level. However, there are recent developments in the form of new guidance for the Department of Labor (DOL) and an AI legislative blueprint from a bipartisan group of senators led by Senate Majority Leader Chuck Schumer (D-NY) that show movement towards regulating the technology.
Agency Action
Last October, President Joe Biden signed Executive Order (EO) 14110 on “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The EO advocated a uniform approach to regulating AI and issued AI-related mandates to numerous federal agencies. As detailed in the EO’s fact sheet, the DOL was directed to “develop principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacement; labor standards; workplace equity, health, and safety; and data collection.” Additionally, the EO instructed the DOL to “publish guidance for Federal contractors regarding nondiscrimination in hiring involving AI and other technology-based hiring systems.”
As instructed by the White House, the DOL published a number of guidance documents this spring. In May, the agency issued “Artificial Intelligence and Worker Wellbeing: Principles for Developers and Employers,” which urges employers to use AI in a way that is transparent to the workforce and improves job quality, among other guidelines. Separately, the DOL’s Wage and Hour Division (WHD) published Field Assistance Bulletin No. 2024-1 detailing how employers can avoid violating the Fair Labor Standards Act (FLSA) when implementing AI in the workplace. Additionally, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) issued the required guidance for federal contractors—Artificial Intelligence and Equal Employment Opportunity for Federal Contractors—which explains the OFCCP’s approach to AI and best practices for avoiding discrimination when using AI in employment practices. Employers would be wise to review these DOL guidance documents to understand the approach the agency will take in enforcement actions touching on the technology.
Legislative Roadmap
Separately, the Bipartisan Senate AI Working Group led by Senator Schumer represents the most significant Congressional effort to date. In the fall of 2023, the working group held nine bipartisan closed door AI Insight Forums to educate senators across the many areas affected by AI, including the workplace.
On May 15, 2024, the Working Group released A Roadmap for Artificial Intelligence Policy in the United States Senate. The AI Roadmap provides policy proposals to serve as a guide for developing legislation going forward across a variety of areas, including employment. For example, it urges Congress to develop legislation related to training, retraining, and upskilling the private sector workforce to successfully participate in an AI-enabled economy.
The AI Roadmap expresses a desire to coordinate efforts with the Biden administration, stating, “We encourage the executive branch to share with Congress, in a timely fashion and on an ongoing basis, updates on administration activities related to AI . . . to better inform the legislative process.” Only time will tell if Congress will be successful in coordinating legislative and regulatory efforts with the White House. Regardless, employers should keep their eye AI developments at the federal level to ensure sufficient time to adapt to any new regulatory requirements.
Savanna L. Shuntich is an attorney with FortneyScott in Washington, D.C. You can reach her at sshuntich@fortneyscott.com.