AI Traps Aren’t Limited to Hiring
By Aiyanah Simms, Brian P. Goodman, Mai Chao Chang and Storm Larson
Employers who use AI to track work time and wages should be cautious that such systems are used consistent with the requirements of applicable law, including wage and hour laws and FMLA. The U.S. Department of Labor's Wage and Hour Division (WHD) recently released a bulletin emphasizing that employment laws still apply when employers use new tools and systems, including AI.
In the bulletin, the WHD discusses the increasingly expansive use of AI by employers, specifically their use in tracking work time, auto-deducting break times, and calculating wages and FMLA leave. While these tools can help an employer track employee activity and productivity in real time, these tools can erroneously advise employers, leading to compliance issues. For example, employers can miscalculate an employee's wages if the AI auto-deducts breaks based on an employee’s use of their work computer, (or lack thereof). However, the AI system likely cannot ensure that an employee is completely relieved from duty at the time of the break. Such an employee could be checking in with a colleague or working offline on something.
AI systems could also make errors if used to track FMLA use, such as by having a system that asks an employee to disclose more medical information than the FMLA allows, or by providing employees with inaccurate information on their ability to use FMLA.
AI can be a powerful tool for efficiency, accountability, and creativity. However, like any new tool, employers should think through the compliance implications and ensure that any new tool is consistent with federal, state, and local laws. Addressing such concerns on the front end is often much easier than having to reverse course midway through implementation if an issue is discovered.
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