Thursday, May 2, 2024

DOL cautions employers on the use of AI

"When used responsibly, AI has the potential to help improve compliance with the law. Without proper human supervision, however, these technologies can pose potential risks to workers … and may result in violations of the law…." 

Those are the words of the Department of Labor in its just published Field Assistance Bulletin, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards.

The DOL highlights many potential legal pitfalls for employers that rely on AI to manage how their employees are paid and to track their attendance and leaves of absence.

For example, under the FLSA, AI that use keystrokes, mouse clicks, eye and other body movements, internet browsing, or other activity to measure productivity are not determinative of whether an employee is performing “hours worked” and could result in underpayments.

Under the FMLA, AI that automatically denies an FMLA leave when an employee fails to submit a medical certification within the designated timeframe violates the statue by failing to take into account exigent circumstances that would have justified the delay and allowed for extra time.

Under the PUMP Act, an AI that requires a nursing employee to adhere to a strict break schedule an automatically penalizes her for deviations from that schedule would violate the Act.

The FAB is full of other examples under these and other statutes. The larger point is that AI is a tool, and tool is only as effective as the person using it. Without human oversight, this tool has the potential create all kinds of legal problems for employers, including under the FLSA and FMLA, as the DOL correctly highlights in its FAB. I'm not saying don't use AI for your employees' wage, hour, and leave issues, but I am saying do so with caution and with sufficient human oversight to ensure legal compliance.