Little V. West
Artificial intelligence (or AI) technology is rapidly transforming industry norms and creating new possibilities along with moral, ethical, and legal implications. The Society for Human Resource Management has recently observed that “[a] workplace run by AI is not a futuristic concept,” noting that a 2022 “report found that 85 percent of employers using automation or AI said it saves time or increases efficiency.”[1]
Regulators and legislators have kept pace with the daily news of breakthroughs in AI capabilities. The result is a virtual kaleidoscope of developing requirements in various jurisdictions, some of which are already in effect, some of which are yet become effective, and some of which may yet be enacted bearing on the use of AI in the workplace.
At the federal level, President Joe Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence[2] on October 30, 2023, directing federal agencies to (among other things) protect labor and employment rights by ensuring that AI systems “will not violate or undermine workers’ right to organize, health and safety rights, wage and hour rights, and anti-discrimination and anti-relation protections.”[3]
In April 2024, the EEOC and DOJ jointly issued a statement explaining that automated systems and artificial intelligence “may contribute to unlawful discrimination and otherwise violate federal law.” Various state and local jurisdictions in the United States already have laws on the books which will become effective, or which are being considered:
Effective 2020, Illinois regulated artificial intelligence in the use of AI video interviewing programs. See 820 ILCS 42 et seq. In 2024, Colorado passed landmark legislation banning algorithmic discrimination, which will become effective in 2026. See C.R.S. 6-1-1702 et seq. Effective 2023, New York City regulated the use of AI in screening candidates for employment. Other states, including California, Georgia, Hawaii, Illinois, and Washington, are considering additional AI restrictions. AI is being regulated internationally, as well.[4]
Common themes addressed by legal regulations governing AI across jurisdictions include transparency into AI usage, notification requirements, data security, fairness in decision making, elimination of algorithmic bias, and auditing. Given this evolving legal and technological landscape, employers would be prudent to consider the dynamic ways in which AI may be used in the workplace, best practices and policies bearing on such use, and the specific legal requirements applicable in the jurisdiction(s) applicable to the employer.
AI might be used, for example, not only by the employer as an administrative tool, but also by employees and applicants for employment. We previously covered several recommended policies and best practices.[5] Moreover, employers should remember that, in addition to laws developed to specifically regulate AI, even laws pre-dating the advent of AI technology can limit its application to employment decision-making. This means employers will want to engage legal counsel for advice regarding vendor selection, contract review, and risk analysis and management regarding the use of automated and/or AI systems.
[1] https://www.shrm.org/topics-tools/tools/toolkits/using-artificial-intelligence-employment-purposes
[2] https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/
[3] https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/16/fact-sheet-biden-harris-administration-unveils-critical-steps-to-protect-workers-from-risks-of-artificial-intelligence/
[4] See, e.g https://commission.europa.eu/news/ai-act-enters-force-2024-08-01_en (noting the EU’s AI Act recently entered into force on August 1, 2024); https://ised-isde.canada.ca/site/innovation-better-canada/en/artificial-intelligence-and-data-act-aida-companion-document (noting legislation under consideration by the Canadian government).
[5] https://www.employerslawyersblog.com/2024/04/ai-in-the-workplace-crafting-policies-for-employees-use-of-generative-ai.html
