Any Law at Work column offers only a snapshot of the state of the law of the topic addressed when the column runs. The very title of the column implies the constant motion of the law of the workplace.
Today’s column addresses legal developments in issues addressed in columns earlier this year.
Artificial intelligence
On Sept. 21 the U.S. Equal Employment Opportunity Commission (EEOC) adopted its 2024-2028 strategic enforcement plan. As in the draft of the plan on which this column previously focused, the EEOC explicitly recognizes employers’ increasing use of artificial intelligence, or AI, especially in targeting job advertisements, recruiting applicants, and deciding whom to hire.
To combat “technology-related employment discrimination,” the EEOC says it will “focus on employment decisions, practices, or policies in which covered entities’ use of technology contributes to discrimination based on a protected characteristic. These may include, for example, the use of software that incorporates algorithmic decision-making or machine learning, including artificial intelligence; use of automated recruitment, selection, or production and performance management tools; or other existing or emerging technological tools used in employment decisions.”
On Oct. 30 President Joe Biden issued a wide-ranging executive order addressing the development and use of AI as it affects everything from commerce to employment to national security. The president’s statement of eight principles that will guide policy development says in part that AI should not be deployed in the workplace “in ways that undermine rights, worsen job quality, encourage undue worker surveillance, lessen market competition, introduce new health and safety risks, or cause harmful labor-force disruptions.”
The president’s order gives the secretary of labor 180 days to work with other agencies and other stakeholders to “develop and publish principles and best practices for employers that could be used to mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” Best practices do not have the force of law, but may influence how courts apply existing law to novel factual scenarios involving AI and may shape later federal or state AI-related regulation and legislation.
The president ordered workplace AI best practices to address, at minimum, specific steps employers should consider taking to address:
- How AI may displace jobs and create career opportunities, and its use in evaluating applicants and workers;
- The implications of AI in employer compliance with rules related to labor standards, protected worker activity such as whistleblowing and union organizing, compensation, and workplace health and safety; and
- The implications of the use of AI to collect and use data about workers.
The order directs the Department of Labor and other federal agencies to consider turning these best practices once developed into guidelines for the programs under their jurisdiction.
The order also directs the secretary of labor to issue guidance to employers that use AI to “monitor or augment” employee work in how to use AI without violating federal law requiring employees to be compensated for all hours worked.
In the coming year, Californians may see state legislators and regulators develop binding measures that limit how employers may use AI. Such measures may draw on the work Gov. Gavin Newsom has directed all state agencies to undertake in his Sept. 6 executive order to study the development, use and risks of generative AI within state government.
Caste discrimination measure vetoed
In May, the column focused on SB 403, then pending in the state legislature, which would have outlawed caste discrimination under the California Fair Employment & Housing Act. In that column, I wrote “It is hard to see what a separate claim of caste discrimination in employment will add to a claim of race discrimination or even national origin discrimination asserted by those not of South Asian descent.”
On Oct. 7, Newsom vetoed the measure. In his veto message, Newsom wrote: “California already prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, gender identity, sexual orientation, and other characteristics, and state law specifies that these civil rights protections shall be liberally construed. Because discrimination based on caste is already prohibited under these existing categories, this bill is unnecessary.”
The measure’s sponsor, state Sen. Aisha Wahab, responded to the veto by saying “I’ll continue to fight to balance power and support vulnerable Californians.” It is unclear whether this means if Wahab, a Democrat, will reintroduce the measure. Until then, the courts may determine whether caste discrimination is indeed prohibited by existing law, illuminating the law at work.
Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.
