The New Jersey Employment Law Firm Blog
As artificial intelligence (AI) becomes more common in computer applications, lawmakers and policymakers have taken notice. This includes the use of AI by employers. For example, several bills introduced in the state legislature would add AI protections to New Jersey employment law. The White House issued an executive order in October 2023 calling for policies that “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” In April 2024, the Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2024-1, which addresses the potential legal issues that AI may pose under several federal employment statutes.
AI and Federal Employment Laws
The WHD uses the definition of “artificial intelligence” that Congress adopted in the National Artificial Intelligence Initiative Act of 2020: a “machine-based system” that can “make predictions, recommendations or decisions influencing real or virtual environments” based on “human-defined objectives.” This consists of three steps, according to the statute:
1. The system perceives an environment.
2. It “abstract[s] such perceptions into models” using an automated system.
3. It “use[s] model inference” to produce new information, including recommendations or conclusions.
Employers may use automated AI tools for a wide range of analytical purposes related to hiring, management, HR, and employee and labor relations.
Potential AI Issues Identified by the WHD
FAB 2024-1 discusses potential problems under three employment statutes.
Fair Labor Standards Act (FLSA)
The FLSA governs minimum wage and overtime pay. The WHD identifies several issues that could result from the use of AI applications by employers:
– Tracking hours worked: The FLSA requires employers to pay employees for all hours worked, including time spent waiting, changing in and out of uniform, and traveling between work locations. The obligation to pay employees for hours worked is not dependent on productivity. AI tools that purport to track whether employees are actively engaged in work, such as by monitoring keystrokes, web browsing, or even eye movements, could violate the FLSA if they affect employee wages.
– Wage calculations: The WHD urges employers to monitor AI-based systems that calculate employees wages to ensure that they are producing accurate results.
– Nursing employees: The PUMP Act requires employers to provide breaks for employees who are nursing children. The WHD has concerns about using AI tools to manage these scheduling tasks.
– Retaliation: Employers may not use AI applications for retaliatory purposes, such as “to surveil the workforce for protected activity and to take adverse actions.”
Family and Medical Leave Act (FMLA)
The FMLA provides unpaid leave to qualifying employees for certain purposes. The WHD identifies issues that may arise related to determining eligibility for leave and protecting employee privacy.
– Processing requests for leave: AI tools need human oversight when determining whether an employee is entitled to FMLA leave.
– Certification requirements: Employers must take care to protect private medical information and ensure that AI tools perform certification procedures correctly.
– Interference and retaliation: Much like with the FLSA, employers must take care not to use AI to obstruct employees’ FMLA rights.
Employee Polygraph Protection Act (EPPA)
The EPPA generally prohibits the use of “lie detector tests” by private employers. The statute also prohibits the use of other technologies, including AI, to perform similar tests, such as by analyzing “use eye measurements, voice analysis, [or] micro-expressions.”
If your employer has violated your rights by engaging in unlawful workplace practices, you need a skilled and experienced employment lawyer on your side. The Resnick Law Group represents workers in New Jersey and New York in a wide range of employment law claims. Schedule a confidential consultation today online, at 973-781-1204, or at 646-867-7997.