Punching In: Stakeholders Urge DOL to Do More on Apprenticeships

Monday morning musings for workplace watchers.

Going Further on Apprenticeships| The Dangers of AI Queries

Parker Purifoy: The DOL’s newest guidance aimed at easing administrative burdens for employers launching registered apprentice programs may not go far enough to achieve the administration’s lofty job creation goals.

The three guidance documents released last week told businesses they don’t have to adhere to strict requirements about the length of apprenticeship programs, and laid out expectations for the role of state governments in the administration’s efforts to balloon the number of participants.

But people who’ve overseen workforce development efforts say the guidance doesn’t solve underlying issues with the apprenticeship program that keep it from being more popular.

“For a program that has struggled for decades, I don’t think a handful of small circulars that address annoying or bureaucratic issues are going to fundamentally change the adoption and expansion of the model,” said John Pallasch, who oversaw the DOL’s Employment and Training Administration during Trump’s first term. “The department needs to lean into it and commit to fundamentally changing the program, changing how it’s perceived by employers and job seekers.”

It’s the administration’s first round of new guidance around the structure of the apprenticeship programs, which some employers consider to be too cumbersome to use. President Donald Trump in an April executive order said he wanted to sign on 1 million new registered apprentices.

“The approach of making piecemeal reforms to aspects of the system through subregulatory guidance has the risk of limited impact,” Apprenticeships for America, a non-profit organization advocating for the expansion of the job training programs, said in a memo sent out last week. “It is not clear whether and how states will adopt some of the more major changes.”

AFA noted that many of the changes will have to be done in coordination with state apprenticeship agencies, and warned that apprenticeship programs should last at least a year to keep up the quality of occupational competence.

Kristen Swearingen, vice president of government affairs for the Associated Builders and Contractors, said in a statement last week that registered apprenticeships are one piece in an “all-of-the-above solution” to workforce development.

“These policies align with our consistent advocacy for simplification of unnecessarily burdensome apprenticeship regulations,” she said of the guidance.

The documents also come alongside the announcement of grant awards directed at states to help spark new apprenticeships in industries including artificial intelligence, information technology, and health care.

Electrician apprentices practice working on a programmable logic controller at the Kentuckiana Electrical Apprenticeship and Training (LEJATC) trade school in Louisville, Ky., on Aug. 16, 2022.

Photographer: Luke Sharrett/Bloomberg

Chris Marr: Employment lawyers are thinking about ways to keep their clients’ generative AI queries from becoming evidence in court.

The fears range from a manager asking ChatGPT how best to fire a pregnant employee without facing a discrimination lawsuit to a recently terminated employee asking Claude for advice on presenting their firing as illegal retaliation.

Educating clients on the dangers might be the best option, attorneys said during AI-related panels at last week’s American Bar Association conference in Nashville.

Companies have rapidly adopted and expanded their use of artificial intelligence tools, including for help in making hiring decisions, drafting employee performance reviews, and asking the tools for legal advice, said Andrew R. Turnbull, a management-side employment attorney at Morrison & Foerster LLP.

These AI-powered tasks generate huge amounts of data, beyond just chatbot or generative AI queries—data that could be presented in court.

“It’s a scary proposition for a lot of us,” Turnbull said during an ABA panel March 11.

Lawyers across practice areas got a wake up call last month on the risks of artificial intelligence queries becoming evidence when a federal judge in New York ruled that a defendant facing fraud charges couldn’t shield his communications with an AI chatbot in which he sought to hone his defense strategy. The judge found the man’s legal queries didn’t enjoy attorney-client privilege or work product protections, because the AI tool isn’t an attorney.

Although that was a criminal case, the same concept likely would apply to supervisors at a business facing an employment law claim and to the workers bringing such lawsuits, said Courtney J. Mickman, an employee-side attorney at Alan Lescht and Associates PC.

It’s less clear in what circumstances, if any, an attorney’s AI queries might be subject to discovery during litigation.

Workers looking to sue in some instances are using AI tools to help them draft a timeline of events, factual statements, and affidavits, as well as to fact check the legal opinions their lawyers provide them, likely waiving attorney-client privilege on those opinions, Mickman said.

“Sometimes we find out after the fact,” she said. “Sometimes we get lucky and they ask us first.”

Her firm has started including language in the retainer agreements they ask clients to sign, informing them of the dangers of entering case information into AI tools, she said.

In some instances, avoiding the free, public-facing AI tools might help protect queries from becoming discoverable in court, since those free tools offer no expectation of privacy, said Katherine Dunn, an attorney with the Service Employees International Union.

But “most of the safe AI is very expensive,” creating a problem for people and entities with limited resources, including local union shops, Dunn added.

A federal judge in Michigan also ruled on the issue last month, going in the opposite direction of the New York case. In Michigan, the judge found a pro se plaintiff’s AI queries were protected from disclosure because the plaintiff was acting as her own attorney and the queries represented her “thought process,” not a discoverable document or piece of evidence.

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