In a joint statement issued on April 4, 2024, five federal agencies, including the Department of Labor, announced they will apply their enforcement authorities to the use of automated systems, including artificial intelligence (AI). As the agencies put it, “Although many of these tools offer the promise of advancement, their use also has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.”

Among the agencies the DOL joins is the Equal Employment Opportunity Commission (EEOC), which was one of the first four agencies to announce they would begin scrutinizing AI selection tools last April. In May 2023, the EEOC published a technical assistance document with guidance for employers on how to monitor their AI selection tools used to make hiring, promotion, and termination decisions for discrimination.

The DOL will now also probe AI selection tools. The DOL’s portion of the April 4, 2024, joint statement announces that the Office of Federal Contract Compliance Programs will analyze federal contractors’ use of AI-based selection procedures for adverse impact “the same way it reviews other selection practices.” Additionally, the OFCCP recently updated its compliance review process to require documentation of the use of AI and automated systems in recruitment, screening, and hiring by federal contractors.

Employers using, or considering using, AI tools in the employment decision-making process, including in-house or online programs or systems that evaluate and rank job applicants, should conduct rigorous testing and train their HR teams on use before implementation and conduct regular audits and trainings thereafter.