Federal enforcement agencies crack down on employer use of artificial intelligence

The General Counsel for the National Labor Relations Board (“NLRB”) recently issued a directive that employers cease illegal automated management practices and electronic surveillance. This is an important development because the COVID-19 pandemic accelerated and expanded employer use of artificial intelligence (“AI”) to monitor and analyze employee communications, computer usage, and even movements. The NLRB’s directive emphasizes that such techniques can improperly interfere with protected activity and, therefore, will be aggressively prosecuted when violating Federal labor law. In other words, the NLRB will not tolerate an employer’s use of technology to track employees or their communications to engage in retaliation or other legal violations regarding the employee hiring process, the employee management process, and/or the employee discharge process.

Even before the NLRB issued the recent directive, other Federal enforcement agencies were already addressing the misuse of AI and other technologies in the employment context. Both the United States Equal Employment Opportunity Commission (“EEOC”) and the United States Department of Justice (“DOJ”) have issued guidance about the potential for AI to incorporate and perpetuate illegal bias and otherwise to cause discriminatory treatment and/or discrimination in effect. The EEOC’s guidance and the DOJ’s guidance, which are based on Federal employment and civil rights law, provide essentially the same warnings to employers not to use AI or other technologies in improper ways during the hiring process or as part of employers’ management practices more generally.