President Biden unveiled the details of the Executive Order on Artificial Intelligence on October 30, 2023. This Executive Order will result in the creation of numerous new regulations with varying timelines that will impact the entire private sector.
The Executive Order Identifies eight guiding principles and priorities including:
- Workplace uses of AI must not harm workers or unions
- AI usage cannot result in discrimination in housing, healthcare, or hiring
- Privacy and civil liberty interests must be protected
- AI must be safe and secure through testing and labeling systems
- Regulatory changes should enable the US to be a leader in AI
- AI usage must be built upon existing consumer protection laws
- The federal government workforce must be AI capable
- The Administration will promote responsible AI usage worldwide
So, what does this mean for employers?
Impacts on Labor & Employment
President Biden’s Executive Order alludes to a growing concern about the impact AI could have on human jobs. In addition to sponsoring future studies on this impact, employers are instructed to make sure integration of AI does not immediately impact collective bargaining or workplace safety. Employers actively exploring the use of AI in the workplace should work with HR, IT, and legal to make sure policies and practices are in place to successfully adopt and use AI and related technology in a manner that augments the workplace in a safe and effective manner perceived to benefit the workplace, as opposed to entirely replace it.
For employers using assistive AI to terminate
, or manage employee performance, special attention must be paid to the EEOC guidance on artificial intelligence in employment selection procedures, which is echoed in President Biden’s Executive Order. Part of this exercise will require employers to inventory what artificial intelligence already exists in HRIS and related platforms already in use, as well as carefully vetting third party companies who advertise algorithmic fairness. Human resources should continue to monitor all HRIS-assisted decision making and conduct bias audits.
Regardless of where employers stand on the use of artificial intelligence for recruiting and performance, all employers should start to adopt policies on the use of generative artificial intelligence in the workplace, either embracing with appropriate use policies or banning the technology altogether. These policies at a minimum should address appropriate and ethical use of generative AI and the impact of such technology on confidential and proprietary information. This means employment agreements may also need to be updated to consistently address the use (or non-use) of generative AI in the workplace.
As employers review and consider the impact of this Executive Order, attention should be paid to:
- Artificial intelligence technologies used to assist in recruiting, hiring, surveilling workers, and measuring and managing performance, including inventory of what AI-embedded programs already exist in HRIS and related technologies subscribed to and/or licensed.
- Current policies addressing generative AI and its impact on confidentiality and proprietary information of the employer and its customers.
- Thinking about the interactions of AI and even robotics in a human-staffed workforce. Consider: How humans working alongside machines and technology interact ethically and in bounds of current policies and procedures; what will change in the day-to-day lives of employees working with AI and other related technologies; and how employers will train employees on safe, effective, and ethical use of AI.
- The Executive Order pays special attention to collective bargaining rights and making sure AI does not negatively impact a worker’s right to organize amid what some perceive as an “AI takeover.”
Michael Best® is a partner on your AI journey to help you accelerate innovation, optimize operations, and gain a competitive edge. We take a holistic approach to helping clients develop an AI plan that aligns with business goals and your risk profile. Beyond essential legal compliance, we provide tailored solutions that address organizational challenges and objectives.
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