The White House just provided employers with a series of best practices that you should consider when using artificial intelligence for workplace purposes. The May 16 Fact Sheet, crafted in conjunction with the Department of Labor, doesn’t carry the weight of law – but could be relied upon by courts and others in these early days of AI risk management and workplace litigation. What are the eight best practices announced by the White House? We’ll discuss this issue and more at AI IMPACT – an FP Conference for Business Leaders this June 26-28 in Washington, D.C. Learn more and register here.
- Establish an AI Governance System – Employers should develop clear systems and procedures – including a human oversight component – before deploying AI in the workplace. This is consistent with the guidelines issued by the National Institute for Standards and Technology (NIST) on artificial intelligence (NIST AI RMF). You should also evaluate the processes once in action to make sure they effectively govern the AI systems. Your Fisher Phillips AI team can assist with creating an AI Governance program specifically tailored for your organization. This program is based on the guidelines in NIST AI RMF.
- Be Transparent – Employers should be transparent with workers and candidates about the AI systems being used in the workplace. This is an increasingly common theme, and one that may soon be required in states like Colorado, California, and New York.
- Use Worker Data Responsibly – AI cannot function without data – and the White House wants employers to be thoughtful when it comes to employee-related data. You should limit the worker data collected and used by AI systems, and only use it to support legitimate business aims. And, of course, protect it and handle it all responsibly. The same is all true for any data about workers created by AI systems.
- Protect Workers’ Rights – Your AI systems should never violate or undermine workers’ inherent or statutory legal workplace rights. This obviously includes equal employment opportunity laws (prohibiting discrimination, harassment, and retaliation), and most employers are becoming familiar with the need to ensure AI systems aren’t biased. But the White House’s Fact Sheet also reminds employers about the importance of complying with workplace safety, wage and hour, and labor relations laws.
- Keep Ethics in Mind – In that same vein, you should make sure your AI systems are designed, developed, and trained in a way that protects workers. Given the direction of new laws that are being proposed across the country, it will be difficult for employers to simply deploy a third-party AI product and then point the finger at the vendor if any ethical issues arise. You should conduct a thorough due diligence process at the outset, before putting new AI systems online. Your Fisher Phillips AI team can assist with creating an AI Ethics policy and training program specifically tailored for your organization.
- Empower Workers – The White House advises employers to offer workers the chance to have “genuine” input into the design, development, testing, training, use, and oversight of AI systems in the workplace. The Fact Sheet makes special note that this process should especially include those from underserved communities.
- Use AI to Help Workers – Employers should ensure that AI systems used in the workplace assist, complement, and enable workers. There should be a focus on improving job quality for your employees, not just using AI to streamline tasks or create organizational efficiencies.
- Support Workers Impacted by AI – Finally, employers should work towards upskilling workers and gearing them up for the AI revolution – and supporting those whose jobs face a transition brought about by AI.
Do You Want to Learn More?
If you are interested in learning more, sign up for AI IMPACT – an FP Conference for Business Leaders this June 26-28 in Washington, D.C. Learn more and register here.
Conclusion
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About the authors:
Karen Odash is an Associate in the firm’s Philadelphia office. Karen assists clients with a range of labor and employment matters, including sexual discrimination and other Title VII claims, litigation and counseling on restrictive covenants and trade secrets, and day-to-day employment advice.
Prior to graduating law school, Karen served as a paralegal focusing on employment and litigation. She spent more than ten years as the director of legal programs for a Fortune 250 financial services company with an emphasis in employment law including restrictive covenant and recruiting. She also provided advice to corporate business partners regarding policies and procedures and legal updates.
David Walton is a partner in the firm’s Philadelphia office and Chair of the firm’s Artificial Intelligence Team, advising clients and formulating strategy for addressing the rapidly evolving challenges presented by the emerging role of AI in the workplace.
Dave’s work with AI is a natural outgrowth of his many years working at the intersection of technology and law. Since the 1990s, Dave has focused his practice on trade secrets, restrictive covenants and employment litigation, but with a particular emphasis on using legal innovation and evolving technologies to help achieve clients’ desired outcomes and enhance the delivery of services. He brings deep experience in labor and employment law, trade secrets, electronic discovery, privacy, data security and computer forensics to clients’ issues. A creative thinker and savvy negotiator, Dave devises cost-effective and pragmatic approaches to mitigate clients’ risks and achieve business goals.