by The U.S. Department of Labor (DOL) is laying out its expectations for employers regarding the lawful use of artificial intelligence (AI) in the workplace. On April 29, 2024, DOL subagencies Wage and Hour Division (WHD) and Office of Federal Contract Compliance Programs (OFCCP) released online guidance documents that address potential legal and business risks and recommended practices regarding employer use of AI and automated systems in people management.
WHD AI Guidance via Field Assistance Bulletin
Field Assistance Bulletins (FABs) are tools the WHD uses to explain to its investigators and other staff how to enforce its regulations. FABs give employers valuable insight into what the agency expects employers to do to comply with wage laws and regulations. In the recently issued FAB, the WHD identifies several employer risks when using AI-supported tools in performing obligations under the Fair Labor Standards Act, the Family and Medical Leave Act, and other laws enforced by the DOL. https://www.dol.gov/sites/dolgov/files/WHD/fab/fab2024_1.pdf.
The bulletin highlights areas of investigatory and compliance concerns, including timekeeping and wage issues:
- Compensable Time: An AI or monitoring system that uses keystrokes, eye movement, internet browsing, or other activity to measure productivity is not determinative of whether an employee is performing ‘hours worked’ under wage law. The FAB states that these metrics do not substitute for analyzing whether the employee performed compensable work.
- Paid Breaks: AI-supported timekeeping systems that auto-populate time entries based on predictions drawn from prior time entries, regularly scheduled shift and break times, employer policies, and other data may result in improper break time recording. The FAB states that the use of ‘smart’ entries does not relieve the employer of its obligation to ensure accurate records and that an employee is paid for all hours worked.
- Work Performed in Multiple Locations: Some employers use location-based monitoring to track employees. Some geolocation software can track employee locations and automate the clocking-in and clocking-out process. The FAB states that location monitoring to determine work hours may create compliance problems in failing to account for work performed in different locations. The example provided is a construction worker beginning their workday before arriving at a designated worksite when the employer asks them to pick up tools at another location on their way to the worksite.
Other areas of WHD concern regarding AI and automated tools are processing leave requests, misuse of monitoring data, and other issues. The FAB message is that employers must demonstrate that human oversight has been used in recordkeeping, wage determinations, leave management, and other employer responsibilities when AI and automated systems are used.
OFCCP Guidance via Employer Guide and Online Landing Page
The OFCCP is concerned about the impact of AI-supported tools on equal employment opportunity and nondiscrimination by federal contractors. It has provided its employer AI guidance through an online guide and landing page linking to additional resources. https://www.dol.gov/agencies/ofccp/ai/ai-eeo-guide.
The guide consists of questions and answers about agency expectations regarding use of AI and automated systems and how the agency will require federal contractors to document the use of such systems in hiring and recruitment. Federal contractor use of AI and automated systems will be part of OFCCP audits and reviews. The Q&As remind employers that these tools are subject to adverse impact analysis and application of the Uniform Guidelines on Employee Selection Procedures (UGESP). UGESP is the document that has long been the guide for contractors to use in validating employee selection procedures when applicant and employee data show an adverse impact from using a selection procedure.
The guide also lists ‘promising practices’ for employers. These are not expressly required but are recommended by the agency to avoid compliance problems related to AI and automated systems. The practices include many recommendations consistent with the growing number of laws and regulations in the U.S. and elsewhere to protect employees and consumers from violations of nondiscrimination laws through AI use. Notably, the practices include recommendations for what federal contractors should include in agreements with vendors who provide AI systems to ensure that the contractor is able meet its audit and review obligations to provide records to the agency consistent with OFCCP-enforced regulatory requirements.
The list of resources on the landing page includes links to resources provided by other federal agencies. The OFCCP states that the guide and landing page will be regularly updated as more information and resources become available.
