Punching In: Labor Department Gets Specific on Employers’ AI Use

Monday morning musings for workplace watchers.

What DOL Wants From AI| Boeing’s ULP Play

Rebecca Rainey: The US Department of Labor is drawing bright lines surrounding use of artificial intelligence in the workplace, warning that employers shouldn’t use the technology to interfere with labor organizing, or to reduce wages, break time, or benefits.

New DOL guidance released last week made clear the worker-protective approach the Biden administration expects from both employers using AI and the developers that make it. While some of the recommendations seem fairly obvious, the document sets the tone for future policy and enforcement efforts in this space.

“The decisions that we make today are going to shape the impact of AI on workers for years to come,” Acting Labor Secretary Julie Su said during a Oct. 16 event announcing the new best practices guide. “That’s why it’s so critical that we all take action now so that AI in the workplace doesn’t create harm, doesn’t deepen existing inequalities, but instead empowers workers and unleashes expansive opportunity.”

The efforts come as employers, unions, and policy makers have been clamoring for clarity regarding how to mitigate the legal risks created by artificial intelligence in the workplace, while also urging the government to not overly restrict innovation.

Some of the biggest considerations the DOL wants AI players to keep in mind include ensuring that employers aren’t relying on AI alone to make “significant” employment decisions, and that workers and unions receive disclosures about when AI is being deployed.

The guidelines also urge companies to “minimize” and limit electronic monitoring wherever feasible, and ensure there’s a “legitimate” business purpose for collecting data on employees.

Employers should keep fair scheduling practices in mind as well, the DOL said, and ensure that AI technology doesn’t “make work more erratic or unpredictable, with insufficient rest time between shifts, or less notice prior to scheduling changes.”

The agency is also placing responsibility on developers, calling on them to restrict or contractually prohibit uses of their tech that could present risks to workers’ rights or safety, and to make sure their systems allow for monitoring and oversight.

The guidelines build on of a series of AI principles released by the administration earlier this year and clarify the types of employment practices and policies the agency will be scrutinizing in its enforcement of federal labor laws. They also follow the release last month of a framework for employers to incorporate practices to prevent AI systems from discriminating against workers with disabilities. President Joe Biden directed these efforts in an executive order on safe artificial intelligence last year.

President Joe Biden signs an executive order on artificial intelligence regulation with Vice President Kamala Harris, right, during an event in the East Room of the White House in Washington, D.C., on Oct. 30, 2023.

Photographer: Al Drago/Bloomberg via Getty Images

Robert Iafolla: Boeing Co. made news recently by lodging an unfair labor practice charge against unions that are leading a 33,000-worker strike, but that filing is all but certain to have no material impact on the ongoing labor dispute that could end this week.

The aerospace company accused two affiliates of the International Association of Machinists and Aerospace Workers of bad faith bargaining in a charge submitted to the National Labor Relations Board. One of the unions had filed a similar charge against the company a few days earlier.

While Negotiations had stalled as the strike dragged on for more than a month, the parties reached a tentative deal announced over the weekend. The unions’ membership will vote on the agreement Wednesday.

Regardless, the NLRB is unlikely to play a meaningful role in the dispute despite the claims of illegal bad faith bargaining filed with the agency.

Staffers in the NLRB’s Seattle regional office must investigate Boeing’s allegations to determine whether they have enough merit to justify issuing a complaint, which can take weeks at least. If the agency issues a complaint, that would then need to be litigated first before an administrative law judge and then the NLRB, which can take a year or more.

And that’s leaving out any litigation in the federal courts, which can sometimes be necessary because NLRB orders aren’t self-enforcing—the agency needs a court’s endorsement to imbue its mandates with real legal teeth.

What would emerge from that process, if Boeing’s accusations stuck, would probably be the NLRB’s typical remedy for bad faith bargaining: an order to bargain.

Hypothetically, the NLRB could intervene in a faster, more significant way if the plane maker convinced the agency to seek an immediate court order against the union under section 10(j) of the National Labor Relations Act, said Matthew Bodie, a University of Minnesota labor law professor and former NLRB lawyer.

A rare example of that type of action occurred about 30 years ago, Bodie added, when then-District Judge Sonia Sotomayor issued a 10(j) injunction against Major League Baseball that helped resolve some issues and brought the owners and the players’ union back to the bargaining table.

But beyond the difficulty inherent in persuading NLRB General Counsel Jennifer Abruzzo and the Democratic majority board to go to court against organized labor—and on behalf of a multi-billion dollar corporation—10(j) injunctions aren’t the tool they used to be.

The US Supreme Court this year curbed the NLRB’s ability to quickly obtain those court orders, and the agency has been reluctant to pursue them.

There appeared to be another objective involved, though. Boeing told Bloomberg News that it filed the ULP charge in response to a similar charge from the union, so that the company could provide “an accurate picture” of recent events.

Or as Bodie put it: “This is more of a move to give the company a PR talking point.”

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.