DOL Issues Guidance On Using AI In The Workplace

The U.S. Department of Labor issued guidance Monday on how employers can carefully use artificial intelligence, saying a lack of human eyes could create a domino effect and lead to violations of federal wage and leave laws.

In a field assistance bulletin, the DOL's Wage and Hour Division said that while AI can offer several benefits to employers, it can also miscalculate employees' worked time and generate violations of the Fair Labor Standards Act, the Family and Medical Leave Act and the Providing Urgent Maternal Protections for Nursing Mothers Act.

"AI and other automated systems can provide ways to streamline tasks for employers, improve workplace efficiency and safety, and enhance workforce accountability," the DOL said. "However, without responsible human oversight, the use of such technologies may pose potential compliance challenges with respect to federal labor standards."

The bulletin comes after President Joe Biden's October executive order on AI.

The DOL said that some employers might track employees' productivity through the use of AI tools that can track their keystrokes, mouse clicks and other data to determine whether they are working, but those options might mislabel worked time as noncompensable.

"Such metrics do not substitute for the analysis of whether the employee was suffered or permitted to work during that time and thus performed 'hours worked' under the FLSA," the DOL said.

That miscalculation could trigger violations under the FMLA, under which employees are eligible for leave after they work at least 1,250 hours for their employer, the DOL added.

"Such systems could also undercount how much FMLA leave an employee has available, for example, by incorrectly dictating which days should be counted against an employee's leave entitlement," the DOL said.

The DOL said that AI systems could also automatically require employees to provide documentation that is not necessary for their leave and impose superfluous deadlines and penalties.

AI tools used to calculate workers' time could also miscalculate break times, as they might not take into account if employees were actually relieved from duty, as well as overlook the fact that employees might be working in different geographical areas, the DOL said.

The DOL said that "employers should exercise proper human oversight" to make sure that the AI tools they use take into account whether different types of employees' pay, piece rates for example, are all taken into account when calculating their regular rate and overtime.

AI technologies might also set in place boundaries over employees' schedules and disregard protections afforded by PUMP Act, a law passed in December that amended the FLSA extending breastfeeding protections to overtime-exempt employees who were previously not covered.

The duration and frequency of breaks employees might take to express milk might vary based on workers' nursing needs and their child, the DOL said.

The DOL said there is also a risk that AI systems would penalize employees for not meeting productivity standards or quotas as a result of taking the pump breaks, which would be a violation of the FLSA.

Attorneys previously told Law360 that AI could shuffle the compliance cards in employment law, affecting overtime-exemption tests and pay discrimination.

--Editing by Amy Rowe.

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