Hunton Employment & Labor Perspectives

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S.  Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighting AI as a chief concern, and in April the White House released an AI Bill of Rights. Through the Order, described as a “Federal Government-wide” effort, the administration charges a number of federal agencies, including most notably, the Department of Labor, with addressing the impacts of employers’ use of AI on job security and workers’ rights. 

Beginning with a section dedicated to “Supporting Workers,” the White House concentrated on mitigating a much-feared outcome of the AI boom: the displacement of human workers. To address this potential risk, the Order directs the Secretary of Labor to evaluate the ability of federal agencies to support workers displaced by the adoption of AI and “other technological advances.” The support solution telegraphed by the Order is combining worker retraining programs through the Workforce Innovation and Opportunity Act, with existing unemployment insurance administered by the DOL. What “other technological advances” means, beyond AI, remains to be seen, but certainly broadens the potential remit of the agency to other algorithmic decision-making tools employers use.

In addition to job displacement, the Order also seeks to establish AI “principles and best practices” for labor standards and job quality, addressing at a minimum, “equity, protected activity, compensation, health, and safety implications,” as well as the implications of AI-assisted collection of employee data. It is clear that several of the DOL’s subagencies will be called upon by the Secretary to weigh in—namely the Occupational Safety and Health Administration (OSHA), and the National Labor Relations Board (NLRB). The President also directed the Secretary to consult with “outside entities,” such as labor unions and workers groups, to develop these principles and best practices. Notably absent from the consultees list are business or employer groups. The mandate dovetails with the NLRB General Counsel’s 2022 warning to employers about the risks of violating Section 7 of the National Labor Relations Act through the use of automated or algorithmic monitoring of employee activity.

Representing a new approach, the Order asks the DOL to issue guidance regarding  violations of the Fair Labor Standards Act (FLSA) when AI monitors or augments employees’ work. Echoing points from the White House’s AI Bill of Rights, the Executive Order requires the Secretary of Labor to publish guidance for federal contractors regarding nondiscrimination in hiring involving AI and other “technology-based systems.” This mandate comes hot on the heels of a weighty update to the Office of Federal Contract Compliance Program’s (OFCCP) Scheduling Letter and Itemized Listing which now obligates federal contractors to provide documentation of their use of AI, algorithms, and other automated or technology-based selection procedures. As before, “technology-based systems” can be interpreted broadly, and likely includes any automated or algorithmic decision-making tool. See this analysis by our colleagues for a more in-depth analysis of the OFCCP’s Scheduling Letter.

The fruits of this Executive Order are likely to pan out over next year, and Hunton Andrews Kurth’s labor and employment team will continue to closely follow the key legal developments surrounding businesses’ use of AI.    For a look at the non-employment aspects of the Executive Order, see this piece on Hunton Andrews Kurth’s Privacy & Information Security Law Blog.