New DOL Guidance for Employers on Responsible Use of AI in the Workplace

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In response to the fact that “Artificial intelligence (AI) holds extraordinary potential for both promise and peril,” the Biden Administration issued an Executive Order in October 2023. As part of the Executive Order, on October 16, 2024, the Department of Labor (“DOL”) issued its latest non-binding guidance on AI use in the workplace, which consists of principles and best practices for AI developers and employers to protect workers and ensure responsible use of AI.

Both guidance and legislation around AI are rapidly changing, and employers that are utilizing or considering use of AI should be mindful of the jurisdictions that already have laws involving AI. However, even if an employer operates in a jurisdiction that does not have any AI specific laws, the DOL’s guidance may foreshadow future legal obligations, and implementation of the DOL’s best practices now may assist employers when legislation is ultimately enacted. Below is a summary of the DOL’s eight principles.

Summary of the DOL’s Principles and Best Practices

• Centering Worker Empowerment. This principle is for both developers and employers and recommends that workers (and their representatives) provide genuine input in the design, development, testing, training, use and oversight of AI programs to be used in the workplace. The guidance further explains that when workers are represented by a union, employers should bargain in good faith on the use of AI and electronic monitoring in the workplace.
• Ethically Developing AI. This principle impacts developers mainly, as it addresses how AI should be developed in order to protect workers’ rights, mitigate risks to worker safety, and meet performance requirements. Additionally, this guidance suggests that developers should create jobs for reviewing and maintaining proper AI standards.
• Establishing AI Governance and Human Oversight. This principle provides that employers “should establish governance structures, accountable to leadership, to produce guidance and provide coordination to ensure consistency across organizational components when adopting and implementing worker-impacting AI systems.”
• Ensuring Transparency in AI Use. The DOL urges that employers be transparent with workers and job applicants about the AI systems that are being used in the workplace. The transparency applies to both the data that will be collected and stored about the workers and applicants, as well as how that data will be used.
• Protecting Labor and Employment Rights. The DOL stresses that AI should not be used (i) in a manner that would violate or undermine workers’ rights to organize or any other protected activities (ii) to negatively impact health and safety rights or wage and hour rights, or (iii) in any way that results in discrimination or retaliation. To ensure rights are not violated, the guidance recommends that employers affirmatively encourage workers to raise concerns about the use and impact of AI and also routinely monitor and analyze whether use of the AI is resulting any such violation.

• Using AI to Enable Workers. The AI programs utilized by employers should assist, complement, enable workers, and improve job quality. The DOL recommends that this be done prior to procuring AI technology, by employers considering how AI programs will impact jobs and whether it could improve job quality (i.e., by reducing time on certain tasks). The guidance also recommends that employers engage workers in the analysis and consideration of AI technology.
• Supporting Workers Impacted by AI. It is anticipated that AI may displace some workers, so for those workers, the DOL recommends that employers support them by finding new positions or upskilling workers. This can be done by offering training opportunities, as well as prioritizing training and reallocation of workers that may be displaced by AI.
• Ensuring Responsible Use of Worker Data. Employers should mitigate risks associated with the collection, use and retention of worker and applicant data. The DOL provides that data collected, used, or created by AI systems should be limited in scope and location and used only to support legitimate business aims.

Key Takeaways for Employers

The DOL guidance demonstrates that employers have an obligation to ensure that AI does not negatively impact workers and applicants, and employers cannot rely on the excuse that AI was responsible, in whole or in part, for a decision or a change. Put differently, although the guidance has not created any new rules, it is clear that if an employer could not do something without the use of AI, it still cannot do it with AI. Lastly, it is important that when AI is utilized, employers fully understand the scope of what information is collected and exactly how that information is being utilized, before any decisions are made as a result.