Monday morning musings for workplace watchers.
Unions Take on AI|SCOTUS Arbitration Debate
George Weykamp: Unions and other stakeholders are setting their focus on regulating artificial intelligence in the workplace even as the Trump administration seeks to largely deregulate the industry.
The AFL-CIO hosted a Workers First AI summit in recent weeks where leaders from across the labor movement called on Congress and state legislatures to pass AI guardrails.
They want “an agenda that says, no, you can’t surveil us in the bathroom. No, you can’t steal our data without our consent. No, you are not going to discriminate against us, fire us by app just because a machine told you to,” AFL-CIO President Liz Shuler said during a keynote address.
Shuler said they are demanding “a worker’s first agenda that protects our civil rights and demands that we all be treated equally and fairly by these technologies.”
But that request could be falling on deaf ears. President Donald Trump last month sent an AI regulatory framework to Congress that requested online safeguards for children and permitting reforms for data centers, but notably left out workplace discrimination protections.
The White House is pursuing “a full blown deregulation agenda, with a push to ban common-sense AI guardrails and letting workers pay the price” Shuler said.
The unions’ initiative underscores growing worker concerns over AI’s use in the workplace. Last month, AI accounted for a quarter of all layoff announcements across all industries.
The administration is calling on Congress to establish a “federal framework protecting individuals from the unauthorized distribution or commercial use of AI-generated digital replicas of their voice, likeness, or other identifiable attributes,” a key priority for entertainment and writers unions.
After tense negotiations in 2023, the Screen Actors Guild–American Federation of Television and Radio Arts and the Writers Guild of America won some concessions that limited management’s ability to use AI to replicate a worker’s performance. Both those contracts are up for renegotiation this year.
In the absence of federal policy, it could be up to unions to establish protections contract by contract.
“Whether it’s in the form of collective bargaining, whether it’s in the form of our public policy protections, the speed and the pace of technology is just extraordinary and unions and the labor movement can’t just be reactive,” said Duncan Crabtree-Ireland, executive director of SAG-AFTRA.
“We’re building real guardrails for working people and we’re educating and engaging our members and the public to help make sure that they can get active in this area.”
Khorri Atkinson: Two US Supreme Court justices hinted at what may be their next test to clarify the scope of a federal law’s mandatory arbitration exemption for transportation workers engaged in interstate commerce, indicating the long-running battle is far from over.
The messaging came during March 25 oral arguments in Flowers Foods v. Brock, which specifically concerns whether a “last mile” delivery driver qualifies for the Federal Arbitration Act’s transportation worker exemption only if they physically cross state lines or just by being part of a larger supply chain that crosses borders.
A decision that could come before July would settle an appellate court split over whether these specific local delivery drivers are part of the interstate commerce stream and therefore exempt from employment contracts requiring mandatory arbitration of workplace disputes. The ruling has major implications for business models used by companies like Amazon Flex and Instacart that rely on gig drivers. A majority ruling in favor of drivers would cause these companies to lose a key legal protection against costly class-action wages and benefits lawsuits.
But in a nod to the Supreme Court’s pattern of incremental rulings that slowly define who falls under the arbitration carve out, Justices Amy Coney Barrett and Neil Gorsuch indicated the court may need to still address whether a local delivery driver’s legal ownership of the goods they transport interrupts the flow of interstate commerce.
This issue isn’t before the court, and Justice Sonia Sotomayor noted that Flowers Foods conceded that the driver, Angelo Brock, delivered its baked goods locally from a warehouse. However, it was a key point Barrett and Gorsuch debated, using hypotheticals to press counsel to clarify who owns the goods and if an interstate journey ends at a local warehouse after crossing borders, or at the final retail destination.
If an independent distributor like Brock buys goods at a warehouse to resell, the interstate stream ends there, Flowers Foods’ counsel argued.
Future litigation on the issue could determine if transferring “titles” or ownership of goods to an independent distributor, which their contracts may address, excludes them from mandatory arbitration clauses under the FAA.
“It’s not insignificant that the justices brought up alternative theories that could be presented again in a different court case down the line,” said Christopher R. Riano, a partner at Holland & Knight.
The justices’ hypotheticals also show “many theories that can exist,” and why there’s no “bright line rule” for determining the scope of the arbitration exemption, he added.
The FAA generally favors arbitration, and the carve out issue is one of the most contested areas of employment arbitration law.
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