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Employer Guidance On AI Coming Soon Following Biden Action  

President Joe Biden’s new executive order on artificial intelligence aims to protect workers’ interests and serves as early guidance for human resources teams eager to formulate policy.

Biden smile 5621670 640While AI can boost workplace productively, there are potential dangers from “increased workplace surveillance, bias, and job displacement,” a factsheet of the order notes. The Biden order lists two actions to help control for these risks, support collective bargaining for workers and ensure sufficient resources for and accessibility to workforce training and development. They are:  

  • Developing 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. These principles and best practices will benefit workers by providing guidance to prevent employers from undercompensating workers, evaluating job applications unfairly, or impinging on workers’ ability to organize.
  • Producing a report on AI’s potential labor-market impacts, and study and identify options for strengthening federal support for workers facing labor disruptions, including from AI.

Private employers are not beholden to the executive order, but AI vendors wanting to do business with the federal government will need to make sure their products and systems comply with it, Adam Forman and Nathaniel Glasser of Epstein Becker & Green, write for JD Supra. “In this way, the AI EO may indirectly establish industry “best practices” based on the government’s purchasing power,” they note. “Moreover, the AI EO’s directive to develop consumer privacy-protecting techniques and tools could signal future regulation requiring private employers and/or the creators of AI tools to preserve workers’ privacy and personally identifiable data.”

The Secretary of Labor, within 180 days of the Oct. 30 order and after consulting with other government agencies and outside groups, including labor unions, will release principles and best practices for employers. “HR and business leaders are eager for clearly defined guidelines outlining acceptable use cases and accountability around AI—and what good looks like,” Cliff Jurkiewicz, vice president of global strategy at Phenom, an AI-powered HR platform, told HR Brew.

Those guidelines could, for example, require employers to use “auditable AI, explain its use to any interested party, comply with existing laws, and use AI in a responsible and ethical way,” he added.

A major concern for employers is “not knowing what legislation will ultimately be put in place and how their organizations will be held accountable,” Jurkiewicz added.

The Secretary of Labor is also ordered to release guidance directing employers to properly compensate their workers “for all hours worked under the Fair Labor Standards Act when using AI tools to monitor or augment employees’ work,” according to labor and employment law firm Littler.

“Significantly, this marks the first time that the Biden administration has shown any interest in AI-related concerns in the wage and hour context,” Littler notes.

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