Biden executive order calls for AI regulation

Published: November 2, 2023 | by Emily Scace, Senior Legal Editor at Brightmine

President Biden recently issued an Executive Order calling for a coordinated approach to regulating the use of artificial intelligence (AI), including in employment.

AI “holds extraordinary potential for both promise and peril,” the EO notes. While AI may “help solve urgent challenges,” the EO emphasizes that it also has the potential to exacerbate discrimination and bias and displace and disempower workers.

To guard against the risks, the EO calls for a commitment to supporting workers as part of the responsible development and use of AI. “As AI creates new jobs and industries, all workers need a seat at the table, including through collective bargaining, to ensure that they benefit from these opportunities,” the EO states. “In the workplace itself, AI should not be deployed in ways that undermine rights, worsen job quality, encourage undue worker surveillance, lessen market competition, introduce new health and safety risks, or cause harmful labor-force disruptions.”

The EO directs the Department of Labor (DOL), in coordination with other agencies and stakeholders, to develop and publish principles and best practices for employers regarding the use of AI. These principles must address, at a minimum:

• Job displacement risks and AI-related career opportunities, including effects on job skills and evaluation of applicants and workers.
• Labor standards and job quality, including issues related to the equity, protected-activity, compensation, health and safety implications of AI in the workplace.
• Implications for workers of employers’ AI-related collection and use of data about them, including transparency, engagement, management and activity protected under worker-protection laws.

It remains unclear to what extent these “principles and best practices” will carry any regulatory force.

To mitigate discrimination risks, the Attorney General’s office is directed to convene a meeting of the heads of federal civil rights offices – presumably including the Equal Employment Opportunity Commission (EEOC) – to discuss coordinated efforts to prevent and address algorithmic discrimination. The DOL also is directed to publish guidance for federal contractors on preventing hiring discrimination when using AI and similar technologies.

The EO builds on earlier steps the government has taken to address issues around AI, machine learning and related technologies. Earlier this year, the EEOC, the Department of Justice, the Consumer Financial Protection Bureau and the Federal Trade Commission released a joint statement that detailed a coordinated approach among the agencies to addressing bias and discrimination in automated systems. The EEOC’s strategic enforcement plan for fiscal years 2024-28 also identifies AI and algorithmic discrimination as a focus area for its enforcement efforts, and the agency has published a number of resources offering guidance on how employment discrimination laws apply to the use of AI in various contexts.