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► Biden Issues Executive Order On Artificial Intelligence

On October 30, 2023, President Joe Biden signed an Executive Order (EO) on the safe, secure, and trustworthy development and use of artificial intelligence (AI). The EO directs numerous federal agencies to take actions aimed at addressing the benefits and poten-tial downsides that come with the rise of AI. The Department of Labor (DOL) numbers among the many agencies tapped by President Biden to take action. While the directives given to the DOL primarily require report writing and drafting subregulatory guidance, employers should take note because these mandates from the Biden administration are likely to have significant downstream effects for employers.

Addressing Public Concerns

The EO is sweeping in its breadth, touching on national security, health, finance, and privacy, among other areas. This is the Biden administration’s signal to the American people that in the absence of legislation from Congress it is addressing public concerns with AI that have arisen since ChatGPT’s release earlier this year. Regarding employment, the EO states that “AI should not be deployed in ways that undermine rights, worsen job quality, encourage undue worker surveillance, lessen market competition, introduce new health and safety risks, or cause harmful labor-force disruptions.”

The directive to the DOL reflects the Biden administration’s concern that AI will result in job displacement and other negative consequences for workers. The DOL must draft a “report analyzing the abilities of agencies to support workers displaced by the adoption of AI and other technological advancements.”

In creating the report, the DOL must consider how current or former federal programs such as unemployment insurance might be used to combat the effects of worker displacement and what other measures and legislative proposals might “strengthen or develop additional Federal support for workers displaced by AI.” The statement is telling, evidencing the Biden administration’s openness and interest in new legislation affecting the workplace.

It's worth noting, however, that such legislative proposals are unlikely to be passed by Congress anytime soon. Many bills touching on AI’s use in employment, such as the Algorithmic Accountability Act, remain stalled in Congress—though that may change now that Senate Majority Leader Chuck Schumer (D-NY) is leading a bipartisan group of senators to draft AI legislation.

Of greater interest to employers in the short term is the DOL’s obligation under the EO to “develop and publish principles and best practices for employers that could be used to mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” Guidelines must cover areas such as data collection from employees, “labor standards and job quality, including issues related to the equity, protected-activity, compensation, health, and safety implications of AI in the workplace,” and ensuring compliance with the FLSA when implementing AI for employee monitoring and assistance.

The timeline for development and publication of the principles and best practices is swift. The guidelines are to be developed in consultation with employees, labor unions, employers, and other stakeholders in the next 180 days. If the DOL meets its deadlines, a great deal of subregulatory guidance on AI will be issued in the next year.

AI and Workplace Discrimination

The EO also evidences the Biden administration’s concern that AI implementation in the workplace will result in discrimination. Within 365 days, the DOL must publish guidance to help federal contractors avoid discrimination when using AI and other technological tools for selections. There’s also a requirement that within 90 days of the EO, the Assistant Attorney General for the Department of Justice’s Civil Rights Division “convene . . . a meeting of the heads of Federal civil rights offices . . . to discuss comprehensive use of their respective authorities and offices to prevent and address discrimination in the use of automated systems” and increase coordination between the agencies on the topic.

Bottom Line

AI continues to be a major focus of national conversation, and for the time being, this EO will drive the federal regulatory effort for the technology. Employers would be wise to engage with the DOL in the coming months as it works to develop principles and best practices for the use of AI in the workplace.
 

By Savanna L. Shuntich. Ms. Shuntich is an attorney with FortneyScott in Washington, D.C. Savanna’s practice includes representation of individuals and companies in employment litigation matters before federal and state courts and administrative agencies. She handles discrimination and retaliation cases under Title VII, the ADA, and other applicable federal and state civil right laws, as well as contractual disputes between employers and employees.

[2/2024]

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