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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, August 21, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will guide employment practitioners through three recently released U.S. Department of Labor (DOL) guidance documents that provide a framework for employer use of AI in the workplace. The panel will discuss how the guidance may direct agency enforcement activity, address open questions that remain, and offer best practices for employer compliance.

Faculty

Emily M. Lamm
Attorney
Gibson, Dunn & Crutcher LLP

Ms. Lamm’s practice focuses on employment litigation, counseling, and investigations. She has substantial expertise advising companies on regulatory compliance with the legal and policy developments surrounding AI and other emerging technologies across the employment lifecycle. Leveraging her deep knowledge of rapidly evolving AI-related frameworks, Ms. Lamm helps companies develop a strategic and practical approach to crafting and implementing policies, processes, and legal risk mitigation strategies. She has advised developers and deployers regarding compliance with New York City’s Local Law 144, the Illinois AI Video Interview Act, the California Consumer Privacy Act), and other federal, state, and international data protection and employment laws. Ms. Lamm is a thought leader in this space, regularly speaking and writing on AI issues in employment. She also has extensive experience assisting clients in drafting employee handbooks and policies, conducting compliance audits and workplace investigations, navigating state and federal agency investigations, and advising clients on a variety of employment-related issues, including pay equity and DEI initiatives.

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Danielle Ochs
Shareholder, Co-Chair Technology Practice Group
Ogletree Deakins

Ms. Ochs has nearly 30 years of experience representing employers in matters involving employment issues and employment-based technology, trade secrets, and unfair competition in federal and state trial and appellate courts, arbitration, and administrative agencies. Her experience includes successfully defending employers in both jury and bench trials and in arbitration proceedings. She currently dedicates a significant portion of her practice to trial court litigation, arbitration, and strategic conflict management. Ms. Ochs also has active advice and counsel, training, and investigations practices, working closely with employers on a variety of employment and employment-based technology, trade secret, and unfair competition compliance issues with the goal of avoiding litigation. She represents an array of “tech” employers, as well as employers in a broad array of other local, national, and international industries. Ms. Ochs regularly speaks across the country on a range of employment, and employment-based technology, trade secret and unfair competition issues.

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Description

The regulatory landscape surrounding the use of AI in the workplace is rapidly evolving as demonstrated by the DOL's recent issuance of guidance documents by the Wage and Hour Division (WHD) and Office of Federal Contract Compliance Programs (OFCCP); and the DOL's subsequent issuance of AI principles for employers. Given the federal government's heightened scrutiny of AI, counsel and their clients should be familiar with the DOL's guidance to understand where the agency's focus will be on enforcement action so that they can best prepare for compliance.

The DOL's WHD guidance addresses possible employer compliance challenges when using AI, particularly in relation to the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA). Regardless of the technology being used for scheduling, timekeeping, or payroll calculation, WHD makes it clear that employers must still comply with FLSA requirements and offers recommended practices for compliance. WHD also addresses risks that may arise under FMLA if employers use AI to process leave requests and track usage.

The DOL's OFCCP guidance addresses federal contractors' use of predictive AI and risks of discrimination when making employment decisions. In addition to discussing contractors' obligations when using AI, OFCCP confirms that it will investigate use of AI during compliance investigations.

Additionally, the DOL's AI principles to employers provide a guiding framework for using AI in the workplace including getting employee input into AI design and implementation, establishing clear governance of AI, and limiting and protecting the use of worker data collected by AI.

Listen as our expert panel guides practitioners through the DOL's latest guidance on the use of AI in the workplace. The panel will discuss where the DOL will likely focus enforcement activity based on the guidance, address open questions that remain, and offer best practices for compliance to mitigate risk.

Outline

  1. Introduction
    1. Increased government scrutiny of AI in employment
    2. Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence
  2. DOL WHD Guidance
    1. FLSA
    2. FMLA
    3. Other provisions
  3. DOL OFCCP Guidance
    1. Contractor compliance obligations
    2. OFCCP investigations
  4. DOL AI principles and best practices for employers
    1. Centering worker empowerment
    2. AI development, governance, and human oversight
    3. Worker impact
    4. Worker data
    5. Other considerations
  5. Remaining questions; future guidance
  6. Practitioner takeaways

Benefits

The panel will review these and other important considerations:

  • What are possible FLSA violations that could occur when using AI in the workplace? Possible FMLA violations?
  • What are federal contractors' obligations when using AI? Possible risks?
  • In what ways do the DOL's AI principles assist counsel and clients with developing AI policies for the workplace?
  • What questions remain unanswered by the DOL's series of guidance? And what does this mean for employers?