HR Tips – Duncan Financial Group
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HR Tips

HR Tips

DOL issues bulletin regarding use of AI and principles and best practices for developers and employers

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued a bulletin April 29 regarding potential issues that may arise in complying with the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and other federal labor laws related to the use of AI and automation technologies. Some of the tools that are used to measure worker productivity metrics, including those that analyze computer keystrokes and mouse clicks, website browsing, and presence in front of a web camera, may undercount hours worked particularly during break times, when employees perform work in multiple locations, or when employees have periods in which they are waiting to be engaged. Employers must ensure that they are paying employees for all hours worked under the FLSA. Technologies that use automated algorithms to calculate and determine workers’ rates of pay based on a variety of data and metrics must ensure that minimum wage and overtime pay requirements are met.

The guidance cautions that automated timekeeping or scheduling systems may violate the FLSA and the Providing Urgent Maternal Protections for Nursing Mothers Act’s (PUMP Act) requirements to provide reasonable break time for employees who need to express breast milk for a nursing child.

Regarding FMLA, the bulletin warns that relying on automated systems to process leave requests such as determining eligibility, calculating available leave entitlements, or evaluating whether leave is for a qualifying reason can lead to violations of employee rights. AI tools that use eye measurements, voice analysis, micro-expressions, or other body movements to determine lying could be considered lie detector tests, which are prohibited by the Employee Polygraph Protection Act.

The memo also reminds employers not to use AI to retaliate against workers in violation of federal labor standards and contains a section on best practices for federal contractors. An FAQ for federal contractors on how to comply with equal employment opportunity requirements when using AI or automated systems is helpful.

The DOL also released a set of principles and best practices for developers and employers on using AI systems in the workplace as required by an October Executive Order.

Workplace harassment guidance released by EEOC

In the first update since 1999, The U.S. Equal Employment Opportunity Commission (EEOC) published final guidance on harassment in the workplace, “Enforcement Guidance on Harassment in the Workplace.” Effective immediately, the guidance offers updated scenarios in which harassing conduct may contribute to a hostile work environment and violate equal employment opportunity law. Some examples:

    1. Sex-based harassment related to sexual orientation and gender identity
    2. Social media conduct outside the workplace
    3. Conduct on an employer’s email system

To learn more about what these HR tips mean for you from a financial perspective, schedule an appointment with one of our financial professionals.