How business is thinking about EEOC’s work on AI

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Oct 23, 2023 View in browser   By Olivia Olander Presented by SOURCEAMERICA® With help from Tanya Snyder.  QUICK FIX EEOC, AI AND HR: The federal agency tasked with enforcing workplace equity has made clear it wants to guide businesses on how to deal with AI, with the aim of avoiding having to seek relief in court — and it may be able to do more with its new Democratic majority. Employers, meanwhile, are watching the Equal Employment Opportunity Commission’s AI moves with caution. “This is really a new civil rights frontier,” EEOC Chair Charlotte Burrows said at a Brookings Institution event Wednesday. Now, with a Democratic majority, Burrows might have an easier time revising the so-called uniform guidelines for employee selection procedures — the hiring guidelines for employers provided by the federal government, which haven’t been updated since the 1970s, said Victoria Lipnic, former acting GOP EEOC chair and a partner at Resolution Economics. Lipnic said changes to the procedures need not necessarily come on partisan lines, given bipartisan interest on the commission about addressing AI. But having a partisan majority could make securing support for changes easier, especially given that any revisions would have to go through other federal entities that co-own the procedures, including the Justice Department. Businesses in general don’t want agencies to “over-tinker” with their existing authority in making rules for AI, said Jordan Crenshaw of the U.S. Chamber of Commerce's Technology Engagement Center. And employers want the ability to provide input, he said. The chamber hasn’t put out a position on whether they’d support a change to the hiring procedures regarding AI, a spokesperson said. An EEOC spokesperson didn’t immediately provide a response Friday to whether the commission was considering it. The EEOC previously put out technical guidance on how employer use of AI could violate the Americans with Disabilities Act, as well as on how the use of automated systems must not violate the provision in the Civil Rights Act protecting employers and job applicants from discrimination. The agency has also said employers’ use of AI will be among the areas receiving scrutiny in the next several years. “Employers are very attentive to what the EEOC is doing and saying in this space,” Lipnic said. But what the EEOC has put out so far — that employers must be compliant with existing laws — is “not exactly a headline,” said Michael Lotito, co-chair of the Workplace Policy Institute at the employer-side firm Littler Mendelson. That leaves plenty of room to figure out how employers actually can discriminate using AI, and who should be held accountable. “People’s attention tends to come about as a result of some kind of cataclysmic event,” Lotito said. “AI is the new toy, and I’m sure that the employment lawyers and the regulators will have a great time playing with it.” GOOD MORNING. It’s Monday, Oct. 23. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. It’s been 223 days since the Senate received Julie Su’s nomination. Send Halloween costume inspo, feedback, tips and exclusives to nniedzwiadek@politico.com and oolander@politico.com. Follow us on X, formerly known as Twitter, at @NickNiedz and @oliviaolanderr.   A message from SOURCEAMERICA®: It’s National Disability Employment Awareness Month. Did you know the number of adults with disabilities who are not employed, at 26 million, is equal to the population size of Texas? Let’s advance access and equity for people with disabilities. Because true inclusion equals all. Discover More.   Around the Agencies CHILD LABOR IN NAT SEC REQUEST: President Joe Biden is asking Congress for an additional $100 million to enforce child labor laws, with an emphasis on protecting migrant children. Half would go to the DOL’s Wage and Hour Division, and half would go to the solicitor’s office, according to the request sent Friday. In context: The White House rolled the ask into the larger $106 billion national security request including funding for the southern border and aid to Israel and Ukraine. Wage and Hour announced last week that its findings of child labor violations were up 49 percent in fiscal 2023. Meanwhile: The White House is expected to soon request domestic funding including support for child care, Jennifer Haberkorn, Adam Cancryn, Caitlin Emma and Jennifer Scholtes report. — Also for your radar: Sens. Brian Schatz (D-Hawaii) and Todd Young (R-Ind.) introduced bipartisan legislation last week to increase fines for child labor violations. It would also allow victims to file private lawsuits, among other provisions, according to Schatz’s office. Schatz introduced legislation earlier this year to similarly raise penalties; the earlier bill also expanded the Fair Labor Standards Act’s definition of “employer” to apply child labor laws to independent contractors. A flurry of anti-child labor legislation this Congress has so far struggled to gain footing in a divided Capitol. More agency news: "‘Who’s going to run the prison?’ Union says loss of pay bonuses at BOP facility will cause major attrition,” from Federal News Network. OPINION: “A Labor Right to Work From Home,” from The Wall Street Journal editorial board.   JOIN 10/25 FOR A TALK ON THE FUTURE OF GRID RELIABILITY: The EPA’s proposed standards for coal and new natural gas fired power plants have implications for the future of the electric grid. These rules may lead to changes in the power generation mix—shifting to more renewable sources in favor of fossil-fuel plants. Join POLITICO on Oct. 25 for a deep-dive conversation on what it will take to ensure a reliable electric grid for the future. REGISTER NOW.     Want to receive this newsletter every weekday? Subscribe to POLITICO Pro. You’ll also receive daily policy news and other intelligence you need to act on the day’s biggest stories. Unions AUTO UPDATE: The United Auto Workers did not expand their strike Friday, with 34,000 workers already out on strike, our Tanya Snyder reports. “Our goal is to get the best agreement possible, not to strike randomly just for the hell of it,” President Shawn Fain said. The union said Friday it received new offers from General Motors and Stellantis in the last 24 hours but not from Ford No way to go but up: He insisted that the companies would keep improving on their offers and encouraged workers to hold firm. “Every time they make an offer, it's the best they can do, it's a record offer and then two days later, there's a new record,” Fain said. “What that should tell you is there's room to move.” All three companies are currently proposing 23 percent wage increases, up from 9 percent in their first offer. Wage tiers have been reduced or eliminated at all three companies. Offers vary across the three companies on cost-of-living adjustments, profit sharing and several other contract articles. More union news: “Hollywood Actors, Studios to Restart Contract Negotiations,” from The Wall Street Journal.   A message from SOURCEAMERICA®:   On the Hill FIRST IN SHIFT: Sen. Bill Cassidy is again pressing the Labor Department for answers about whether it pushed for employers to file union persuader disclosure forms about their own corporate officers, in a letter sent Sunday to acting Labor Secretary Julie Su. The Labor Department in its response to an earlier July letter from Cassidy described the OLMS’ responsibilities in general and said the office only seeks disclosures in situations when they’re required. DOL didn’t immediately respond to a request for comment after the new letter was sent. Similar to a letter Cassidy (R-La.) sent last week on DOL’s efforts to aid migrant children, the top Senate HELP Committee Republican acknowledged the department had previously responded to communications on the topic but said DOL didn’t fully answer his questions. In the Workplace WAR’S RIPPLE EFFECTS: The fallout of the Israel-Hamas war — and the way we talk about it — is affecting all kinds of companies, bosses and workers, The Associated Press reports. “People from all ranks have been called out for speaking too forcefully — or not forcefully enough — making it nearly impossible to come up with a unifying message when passions run deep on all sides,” the AP reports. IN THE STATES COVID RECOVERY: New York City is reaching a full recovery from pandemic job losses, our Joe Anuta reports after an event hosted by Mayor Eric Adams touting the gains. “As of September, the city regained all of the jobs lost as a result of the Covid-19 pandemic, putting the total number at 4.7 million — a record high,” Joe reports. The city has lagged behind the rest of the state and the nation in economic recovery from the pandemic, he notes. More in the states: “Unions push to represent more workers, but organized labor’s share of jobs is declining,” from the Chicago Sun-Times. IMMIGRATION H-1B MODERNIZATION RULE: The Department of Homeland Security on Friday announced a proposed rule aimed at addressing visa fraud in the H-1B lottery system, your host reports. The proposal for the H-1B visa system, intended for temporary workers in specialized jobs, would change lottery registration rules so individuals seeking the visas can only be entered once, even if multiple companies register the same worker. Among the other changes: The rule adds flexibility for entrepreneurs, as well as for students trying to transition from an F-1 academic visa to an H-1B visa. And some exemptions to the visa cap would be expanded for nonprofits and government research organizations.   JOIN 10/24 FOR AN UPDATE ON CHIPS: America is rapidly restructuring its semiconductor supply chain and manufacturing base, thanks in part to billion-dollar initiatives like the CHIPS and Science Act. But who is winning the reward? Join POLITICO Oct. 24 to get an update on CHIPS what other challenges have emerged now that the new era is underway. REGISTER NOW.     WHAT WE'RE READING — “Electric Cars Were Already Having Issues. Then Things Got Political,” from The Wall Street Journal. — “Trader Joe’s Fires Back at Labor Union in Trademark Dispute,” from Bloomberg Law. — “CEO Departures Hit Highest Level on Record,” from Bloomberg. — “Cities Foster Serendipity. But Can They Do It When Workers Are at Home?” from The New York Times. THAT’S YOUR SHIFT!   A message from SOURCEAMERICA®: If you woke up to a 35% charged phone, you’d be upset. For perspective, only 35% of working age people with disabilities are employed. It’s National Disability Employment Awareness Month and every day at SourceAmerica® we connect people with disabilities to employment through our nationwide network and the AbilityOne® Program. Because true inclusion equals all. Discover how you can advance access and equity and help make your workforce more inclusive. Learn More.     Follow us on Twitter Nick Niedzwiadek @nickniedz Olivia Olander @oliviaolanderr   Follow us

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