Artificial Intelligence is transforming the American workplace. While the promise of AI is very real, so are the dangers this new technology presents. In particular, employers need to exercise caution that in using AI to solve one problem, they do not inadvertently create new—potentially more dangerous—liabilities.
Most—if not all—laws with which employers regularly contend were written well before the advent of the internet, let alone artificial intelligence. Consider, for instance, the Fair Labor Standards Act (FLSA). Originally drafted almost one hundred years ago, the FLSA makes certain employees exempt from minimum wage and overtime pay requirements. These exemptions rely in part on a job duties test—a test that focuses on the tasks actually performed by the employee, and not simply the employee’s job description. One group of such exemptions—the FLSA’s “white collar” exemptions, which include professional, administrative, and executive employees—encompasses a number of duties that could, and, in some instances already are, being performed by artificial intelligence.
Many employers are deploying AI to help accelerate repetitive, data-heavy tasks. While routine, such tasks may have also relied on independent judgment and user-specific input—criteria that the Department of Labor and the courts have considered when determining an employee’s exempt status. Even when an exempt employee is simply using artificial intelligence as a tool to help perform exempt duties, artificial intelligence’s ability to accelerate such duties could dramatically reduce the time spent performing them. Consequently, exempt employees may find themselves spending increasing amounts of time on non-exempt tasks and, as such, jeopardizing their FLSA-exempt status.
To date, such scenarios remain relatively theoretical. The dearth of specific case law, however, is merely a product of the breakneck speed at which the artificial intelligence revolution is unfolding. As more and more employers integrate existing job duties with artificial intelligence, employers should expect enterprising plaintiffs’ attorneys and government wage enforcement agents to scrutinize the friction points created when hundred-year-old laws collide with bleeding-edge technology.
At a minimum, employers need to recognize that for all its promise, artificial intelligence should be integrated into existing operations with an appreciation for its potential perils. With regard to the FLSA and exempt duties, employers should augment their current FLSA audit processes with an understanding of how AI can impact the current duties tests. Furthermore, employers should embrace opportunities to work with legislators to modernize both state and federal employment laws so as to maximize employers’ ability to remain competitive in our AI-driven future.
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