The U.S. Department of Labor (DOL) recently released new non-binding guidelines for employers and developers using artificial intelligence (AI). These guidelines build on the DOL's May 2024 release of eight AI "principles" for developers and employers. Employers that use AI in the workplace should be familiar with these principles and guidelines as they formulate and implement policies regarding the development and use of AI.
The DOL's principles and guidelines cover the entire lifecycle of AI—from design to development, testing, training, deployment and use, oversight, and auditing. A summary of the eight principles and their corresponding guidelines follows.
1. Centering Worker Empowerment
The DOL encourages developers and employers to integrate early and regular input from workers into the design, development, testing, training, use, and oversight of AI systems in the workplace. In the case of unionized workers, the DOL encourages employers to bargain in good faith on the use of AI in the workplace.
2. Ethically Developing AI
The DOL stresses that ethical standards and review processes in the development of AI are crucial to enhancing workers' well-being. It encourages developers to restrict or contractually prohibit uses of AI systems so as to limit risks to workers' rights and safety, such as high error rates in certain workplace contexts or risks of discrimination based on race, gender, age, disability, or other protected categories. In addition, developers are encouraged to conduct impact assessments and independent audits of AI systems they bring to the market, and to publish their results.
3. Establishing AI Governance and Human Oversight
The DOL encourages employers to have clear governance systems, procedures, human oversight, and evaluation processes for AI. This includes providing employees with appropriate training about AI systems in use and ensuring meaningful human oversight of any significant employment decisions supported by AI systems. It also includes providing workers and job seekers a meaningful and plain language explanation of the AI system's role in employment decisions and the data relied on to make such decisions. Finally, employers are encouraged to provide an appeal process, human consideration, and a remedy for AI-based decisions which adversely impact employees, and ensure their AI systems are regularly independently audited.
4. Ensuring Transparency in AI Use
The guidelines stress the importance of employer transparency about the AI systems being used in the workplace. In particular, employers should provide greater transparency and disclosure about how worker-impacting AI systems are being used, what data is collected, how the data is used, and for what purpose. This includes providing workers advance notice of these items before the systems are deployed. In addition, the guidelines encourage employers to ensure that workers and their representatives can request, view, and submit corrections to individually identifiable data used to make significant employment decisions without fear of retaliation.
5. Protecting Labor and Employment Rights
The DOL stresses that AI systems should uphold labor and employment rights by not violating or undermining workers' right to organize, health and safety rights, wage and hour rights, and anti-discrimination and anti-retaliation protections. This includes refraining from using automated systems to limit or detect labor organizing or workers' other protected activities and notifying workers of existing technologies in the workplace that can monitor such activities. In addition, this means ensuring that AI systems do not adversely affect health and safety outcomes or reduce wages, break time, or benefits workers are legally due. The DOL also encourages employers to audit AI systems for adverse impacts on the basis of race, color, national origin, religion, sex, disability, age, genetic information, and other protected characteristics, and to make the results public. Finally, developers and employers are encouraged to assess how the design and use of AI may impact workers and job seekers with disabilities.
6. Using AI to Enable Workers
The guidelines encourage employers to implement AI systems in ways that enhance job quality for workers, such as by considering how AI systems will impact specific job tasks, skills needed, job opportunities, and risks for workers, and by running pilot programs before deploying them more broadly. In addition to these precautionary measures, the DOL encourages employers to limit electronic monitoring to the least invasive means necessary to accomplish legitimate and defined business purposes. Finally, the DOL encourages employers to share benefits due to the use of AI systems (such as those arising from productivity gains or increased profits) with workers through increased wages, improved benefits, increased training, fair compensation for the collection and use of worker data, or reduced working hours without loss of pay.
7. Supporting Workers Impacted by AI
The guidelines encourage employers to take certain steps to mitigate the risk and harms of worker displacement due to AI. These include providing workers with appropriate training opportunities to learn how to use new AI systems to prevent displacement before it happens, prioritizing retaining and reallocating workers displaced by AI to other jobs within the organization when feasible, and seeking opportunities to work with state and local workforce systems to support education and training partnerships for upskilling.
8. Ensuring Responsible Use of Worker Data
Finally, the DOL encourages the responsible collection, retention, and use of worker data. Ways to achieve this principle include avoiding the collection and retention of unnecessary worker data, securing and protecting the worker data that is collected, and requiring workers' informed consent prior to the sharing of any such data outside the employer's business.
Takeaways
Employers that use AI in the workplace should be familiar with the DOL's principles and guidelines as they formulate and implement policies regarding the development and use of AI. The DOL's guidance provides a helpful framework for employers to consider how to harness AI technologies for their businesses while protecting workers from its potential harms. While this particular DOL guidance is not binding, this area of the law is rapidly evolving and clients should continually monitor federal, state, and local regulation on the use of AI in the workplace.
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