The Department of Labor (DOL) has released a guide on artificial intelligence and worker well-being.  The Federal Trade Commission (FTC) is appealing a ruling striking down the FTC’s rule on the use of noncompete agreements in employment contracts. EEOC has filed several lawsuits and filed a case brought alleging violations of the Pregnant Worker Fairness Act (PWFA). A Senate Subcommittee held a hearing on AI skills training.

DOL Develops AI Guide – The Department of Labor (DOL) has issued the Artificial Intelligence and Worker Well-Being: Principles and Best Practices for Developers and Employers guide. The AI Executive Order signed by President Biden directed DOL to create this guide, which is intended to “create a roadmap for developers and employers on how to harness AI technologies for their businesses while ensuring workers benefit from new opportunities created by AI and are protected from its potential harms.” DOL recommends that “when workers are represented by a union, employers should bargain in good faith on the use of AI and electronic monitoring in the workplace.”

The AI principles for developers and employers include:

• Ensuring that workers and unions have input into the design, development, testing, training, use and oversight of workplace AI systems that protect workers.
• Creating governance systems and procedures that include human oversight and evaluation processes.
• Communicating with workers and applicants about the AI systems being used in the workplace.
• Ensuring that AI systems do not violate or undermine workers’ rights to organize, health and safety rights, wage and hour rights, and protection from discrimination and retaliation.
• Supporting workers, improving job quality, and assisting employees impacted by AI through retraining during AI related job transitions.
• Limiting the use of workers data collected by AI systems so that it is only used to support legitimate business aims and protects workers.

FTC Appeals Noncompete Ruling – The Federal Trade Commission (FTC) has filed a notice of appeal in the United States Court of Appeals for the Fifth Circuit of the ruling striking down the FTC’s rule on the use of noncompete agreements in employment contracts. In the case of United States Chamber of Commerce v. Federal Trade Commission, the United States District Court for the Northern District of Texas concluded that the FTC exceeded its statutory authority by issuing the noncompete rule and that the rule “is arbitrary and capricious because it is unreasonably overbroad without a reasonable explanation.” The District Court issued a nationwide ban on the rule that was scheduled to go into effect on September 4^th.  

Previously, the FTC appealed a similar decision to the United States Court of Appeals for the Eleventh Circuit. In that case, Properties of the Villages v. Federal Trade Commission, the United States District Court for the Middle District of Florida issued a preliminary injunction prohibiting enforcement of the noncompete rule. That ruling was limited to the Properties of the Villages, the plaintiff in the case. By contrast, in a third case challenging the FTC’s rule, the United States District Court for the Eastern District of Pennsylvania decided in the case of ATS Tree Services LLC v. Federal Trade Commission that the FTC had the statutory authority to issue the noncompete rule.

EEOC Files and Settles PWFA Cases – The Equal Employment Opportunity Commission (EEOC) filed its three lawsuits alleging that employers violated the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023. All three cases allege the employers violated the PWFA by failing to accommodate pregnant employees. EEOC General Counsel Karla Gilbride stated “The PWFA requires that when an employee needs a modification at work because of their pregnancy or a related condition and the employer becomes aware of that need, the two must work together to try to find a solution. When employers apply inflexible policies that drive pregnant workers out of the workplace rather than engaging in this interactive process, the EEOC will step in to defend workers’ rights under this new law.”

In the case of EEOC v. Wabash National Corporation, which was filed in U.S. District Court for the Western District of Kentucky, the EEOC alleges that the employer failed to accommodate an employee’s known pregnancy-related limitations. The EEOC contends that Wabash National Corporation, a producer of semi-trailers and other commercial trucking equipment, denied a pregnant employee’s request to transfer to a position that didn’t require her to lie on her stomach. The company forced her to take unpaid leave and required her to return to her position resulting in her resigning when she was nearly eight months pregnant.

EEOC v. Polaris Industries, Inc., was filed in the U.S. District Court for the Northern District of Alabama and alleges that the manufacturing company refused to excuse an employee’s absences for pregnancy-related conditions and medical appointments and required her to work mandatory overtime despite her doctor restricting her from working over 40 hours a week. The company assessed attendance points against her and warned her that she would be fired if she acquired another point, leading to her resigning to protect her pregnancy.

EEOC v. Urologic Specialists of Oklahoma, Inc.,  was filed in the U.S. District Court for the Northern District of Oklahoma and contends that the medical practice would not allow a medical assistant to sit, take breaks, or work part-time during the final trimester of her high-risk pregnancy and was not guaranteed needed breaks. She was forced to take unpaid leave and was subsequently fired when she refused to return to work without the guaranteed breaks.

EEOC also announced the settlement of a PWFA lawsuit in the case of EEOC v. Largo Mar Properties, which was filed in the U.S. District Court for the Southern District of Florida. Largo Mar agreed to pay $100,000 in damages to the former employee and take other actions to ensure employees are provided with reasonable accommodations under the PWFA and the Americans with Disabilities Act (ADA). The lawsuit alleged that the employer terminated an employee after she requested leave to recover and grieve following a stillbirth during her fifth month of pregnancy.

Senate Subcommittee Holds Hearing on AI Skills Training – The Senate Subcommittee on Employment and Workplace Safety held a hearing on how artificial intelligence (AI) skills training can prepare workers to compete in the modern job market and leverage AI tools in the workplace. The hearing was chaired by Senator John Hickenlooper (D-CO) who stated that “we know that having a well-trained and informed workforce is key, is really essential, to making sure that AI is used responsibly and that both workers and businesses can reap the full benefits of the tools.” Senator Hickenlooper is a cosponsor of the Lifelong Learning Act (S. 3877), which is a bipartisan bill that would give local workforce development boards greater flexibility to train existing workers to avoid layoffs.  The bill has been referred to the Committee on Health, Education, Labor, and Pensions (HELP).  

Among those testifying was Dr. Karin Kimbrough, Chief Economist at LinkedIn who noted the growth of AI resulting in new jobs being created and the skills required for existing jobs have shifted. He predicted that for many people, “two-thirds of what we do at work every day will look very different in just a few short years.” Additionally, he noted that certain industries such as financial services will be impacted more than those working in the technology industry or accommodation or food services. He expects the demand for those with AI skills to outpace the available supply. Employers recognize that not only do they need to hire those with AI skills, but they are investing in training their existing workforces. He stated that an increasing number of workers are recognizing the value of acquiring AI skills.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues and was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.