DOL Publishes Field Assistance Bulletin On AI

On April 29, 2024, the Department of Labor (DOL) issued a Field Assistance Bulletin on Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act (FLSA) and Other Federal Labor Standards. This Bulletin provides insight into how the use of AI and other automated systems in the workplace may create liability for employers under the FLSA and other laws, such as the Family and Medical Leave Act (FMLA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). 

As to the FLSA, the Bulletin gives examples of how automated scheduling, timekeeping, monitoring, and tracking systems may create liability for employers by undercounting actual hours worked. The Bulletin further addresses how AI can impact the proper calculation of wages owed especially when wage rates vary, or a worker is paid on a piece rate or per task basis. Because employers are responsible for paying employees properly for all hours worked regardless of the technologies and systems used, the Bulletin demonstrates the need for human oversight of automated systems determining or affecting the calculation of hours worked and wages.  

The Bulletin also explains how AI can create system-wide liability for an employer by improperly administering or interfering with an employee’s rights under the FMLA. For example, if timekeeping programs are incorrectly determining the hours an employee has worked, that data may result in a mistake in determining whether an employee is eligible for FMLA. Or “a system that triggers penalties when an employee misses a certification deadline could violate the FMLA if the deadline should not have been imposed or the system failed to appropriately take into account circumstances that permit extra time for submission.” 

As to the PUMP Act, the Bulletin states that “automated scheduling or timekeeping systems that limit the length, frequency, or timing of a nursing employee’s breaks to pump,” “productivity scoring and monitoring systems that penalize a worker for failing to meet productivity standards or quotas due to the worker having taken pump breaks,” or an “automated scheduling system that requires an employee to work additional hours to make up for the time they spent taking pump breaks,” would violate the law.  

If you are using automated systems in your workplace, we strongly encourage you to carefully review this Bulletin. While it is addressed to DOL investigators, the Bulletin is very useful for employers because it demonstrates areas to target for proactive risk-reduction. While automation may be useful, employers must exercise caution to ensure they are not inadvertently creating expansive liability. Human oversight remains critical to ensure compliance with these complicated laws, and KZA’s attorneys can help you proactively analyze these issues. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.