DOL: AI use can risk violations

05/02/2024

Human oversight still part of FLSA and FMLA compliance

Using artificial intelligence (AI) to help manage employees? Make sure it doesn't stray too far and veer into a courtroom.

The U.S. Department of Labor's Wage and Hour Division (WHD) published, on April 29, a Field Assistance Bulletin on the workplace use of AI and automated systems under the federal Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Law flexibility as technology changes

Employers might use AI to track and process such work functions as:

  • Employee work hours,
  • Job performance, and
  • Employee leave.

The federal laws the WHD enforces are flexible enough to include these changing workplace tools, but the laws' protections apply regardless of technological innovation.

Laws apply no matter where employees work

The bulletin says that without responsible human oversight, the use of AI and related technologies may pose potential employer compliance challenges with respect to federal employment laws.

Employers could use these tools primarily with remote or hybrid workforces, but they could also use them in other settings, such as offices, restaurants, retail stores, call centers, and warehouses. The guidance applies equally to all covered employment, regardless of where employees are performing the work.

WHD agents use Field Assistance Bulletins to help with their enforcement efforts. The information in them offers insight into what agents will be looking for during a claim or investigation.

Risks of miscalculating hours worked under the FLSA

AI programs that incorrectly capture time as unpaid work hours based on analysis of worker activity, productivity, or performance could result in a failure to pay wages for all hours worked. AI or monitoring systems that use keystrokes, eye movements, internet browsing, or other activity to measure productivity do not determine whether an employee is performing "hours worked" under the FLSA.

Such metrics do not substitute for the analysis of whether an employee was suffered or permitted to work during that time and thus performed work under the FLSA. This broad-stroke approach could result in an undercount of hours worked, which would violate the FLSA.

Risks of miscalculating FMLA leave

Employers might use AI to help process employee FMLA leave requests, track time off, and integrate absence calendars. Relying strictly on automated systems to process leave requests, including determining eligibility, calculating available leave entitlements, or evaluating whether leave is for a qualifying reason, can create potential compliance risks.

AI might, for example, test for eligibility more frequently than allowed under the FMLA, resulting in employers denying leave in violation of the law.

Key to Remember: Employers must ensure their use of AI is responsible and does not result in a violation of federal employment laws.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.

The J. J. Keller FMLA Manager service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA requirements.