Department of Labor Releases Principles and Best Practices for the Use of Artificial Intelligence in the Workplace

With the use of Artificial Intelligence (“AI”) systems becoming more and more prevalent in workplaces across the country, the U.S. Department of Labor (“DOL”) has released guidance on the development and use of AI by employers. This document, entitled “Artificial Intelligence and Worker Well-being: Principles and Best Practices for Developers and Employers,” (“Best Practices”) was created at the direction of President Biden’s October 2023 Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which we discussed here. The new guidance from the DOL, which is non-binding and does not have the force and effect of law, outlines the implementation of AI and AI-related policies in ways to enhance work product while protecting workers.

In the Best Practices, the DOL has emphasized different areas of AI and how the incorporation of AI in the workplace will impact workers, and ultimately how the performance of their jobs will be conducted. However, the DOL recognizes that workers’ experiences may be impacted both positively and negatively by the use of AI. The Best Practices emphasized, therefore, areas for employers to amplify the work environment and empower workers, while minimizing the negative effects that AI design and utilization may have.

Potential Impacts of Health Care Workers Using AI

1. Positive Impacts:
   1. Enhanced Work Conditions: The use of AI can improve working conditions by automating repetitive tasks, allowing health care professionals to focus more on patient care and reduce burnout.
   2. Job Redesign: As AI transforms tasks, there is a need to redesign jobs to optimize the collaboration between human workers and AI. This can lead to more meaningful work roles and improved job satisfaction. The DOL noted that employers should collaborate with workers and their worker representatives when organizations restructure, repurpose or eliminate specific job functions due to the use of AI.
2. Negative impacts:
   1. Undermining Workers’ Rights: AI has the potential to have embedded bias and discrimination. Including having disparate or adverse impacts on both worker and patient populations based on race, color, national origin, religion, sex, disability, age, genetic information or other protected bases. The DOL cautioned that AI systems in the workplace should be developed to “enhance civil rights, equity, safety,” as well as be tested for accuracy, validity and reliability.
   2. Human Oversight: AI has the power to make decisions, but without transparency, and ultimately AI should complement, not replace, human judgment in the workplace setting. Employers need to retain the final say in making significant employment decisions.

DOL’s Principles for Employers

The DOL outlined the following principles for employers and AI developers to apply when developing and integrating AI systems into the workplace:

1. Transparency: Employers should clearly communicate how AI systems operate and the criteria they use for decision-making. This is also vital in health care, where patient outcomes may be impacted by AI-driven tools.
2. Data Privacy: The DOL recognizes that worker information, as well as patient information, are confidential, sensitive information. AI systems must comply with privacy rules and regulations, including HIPAA to ensure that both the worker and patient data is protected. The collection and retention of worker data in AI systems should be limited in scope and location and used only to support legitimate, business purposes.
3. Governance Program: Employers should establish a governance structure to provide guidance and consistency when adopting and implementing worker-impacting AI systems, including seeking input from the workforce or their representatives.
4. Auditing: Employers should establish policies and procedures that continuously audit AI systems and processes so that they can address any adverse impacts on workers and/or patient care. Making sure to note any embedded bias and discrimination. The DOL emphasizes the importance of equitable access to AI technologies and training across all levels of the workforce to prevent disparities in job opportunities and work conditions.
5. Proper Workforce Training: Health care workers should receive support to develop skills that complement AI technologies, ensuring they can effectively use these systems in patient care.
6. Feedback Mechanisms: Establishing channels for health care workers to provide feedback on AI systems, particularly during job transitions due to AI, is crucial for continuous improvement and ensuring that these tools genuinely assist, complement and enable workers in the workplace.
7. Protecting Workers’ Labor and Employment Rights: Employers should not solely rely on AI technology to make employment decisions that could adversely impact the employees, including hiring or firing, compensation or other disciplinary actions. Nor should employers’ use of AI systems undermine, interfere with or have a chilling effect on labor organizing and other protected activities.

Practical Takeaways

• AI can contribute to a better work environment by increasing worker productivity and engagement to allow health care professionals to focus on patient care, thereby reducing burnout for these professionals; however, proper training and implementation of AI are crucial to achieving this objective.
• Employers should consider how the AI technologies they select for implementation will impact their employees, including assessing inherent biases as well as how the AI can potentially change the scope of employees’ job duties.
• The establishment of a governance program, including audit protocols for AI, is essential for successful AI implementation.

If you have any questions or would like additional information about the DOL’s Best Practices on AI in the workplace, please contact:

• Kathryn Jones at (248) 457-7846 or kjones@hallrender.com;
• Jennifer Davis at (248) 457-7827 or jdavis@hallrender.com; or
• Your primary Hall Render contact.

Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.