Sweeping AI Executive Order Impacts Employers

What the Order Addresses

President Joseph Biden issued an executive order on October 30, 2023, titled “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” The order covers various aspects related to artificial intelligence, including guidelines for protecting national infrastructure from cyber-attacks and the use of AI in public benefits and services. It also addresses AI enforcement by civil rights agencies, AI monitoring’s impact on worker protections, and the use of AI by federal contractors.

Of particular interest to employers are the increased regulations concerning employer monitoring outlined in Section 6 of the Executive Order. This section instructs the Secretary of Labor to develop and publish principles and best practices for employers, focusing on labor standards, job quality, equity, protected activity, compensation, health, safety implications of AI in the workplace, and AI-related data collection about employees. Employers using AI to monitor or augment employees’ work are required to comply with worker protection laws.

How the AI Executive Order Impacts Employers

The broad scope of the Executive Order grants the Department of Labor considerable authority to regulate AI’s use in monitoring and tracking employee activity, potentially exposing both unionized and non-unionized employers to liability risks. This increased regulatory environment may lead to further scrutiny of AI and its impact on protected concerted activity under the National Labor Relations Act (NLRA). The NLRB General Counsel has previously emphasized the need to regulate algorithm-driven management practices that could interfere with employees’ protected activities under the NLRA.

Next Steps for Compliance

As a result, employers should anticipate an escalation in AI-related regulations from federal agencies. For guidance, Achilles Group clients are advised to consult with their consultant to navigate these evolving regulatory requirements.

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