The Impact of the Presidential Election on Artificial Intelligence Regulation in the Workplace | Smaller

As artificial intelligence (AI) continues to transform the workplace, regulators and agencies are grappling with how to regulate its use in employment environments, from hiring practices to employee monitoring. The next administration’s approach to AI regulation will help shape the balance between innovation and worker protection, with each political party having its own view on the role of government oversight. A shift in power could lead to changes in how the U.S. Department of Labor (DOL), the U.S. Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) address the growing influence of AI in the workplace, which will have implications has for compliance requirements for employers throughout the country.

A Harris administration

A Harris administration is expected to continue the Biden administration’s overall approach to AI regulation. As a 2020 candidate, President Biden regularly stated that he would be the most pro-union president in history and would make greater unionization a top priority of the current administration. As a result, in the labor and employment context, the Biden administration has prioritized tackling AI when it is used for anti-union purposes or to displace workers. This approach to regulating AI includes executive orders, interagency agreements, and actions by individual agencies. A Harris administration would likely build on these efforts, and Vice President Harris’ choice of Minnesota Governor Tim Walz as her running mate suggests she will continue a pro-union agenda that permeates all AI regulatory efforts.¹

Vice President Harris, as a former U.S. Senator from California and the state’s former attorney general, may be more inclined to take a proactive approach to regulating AI in accordance with AI legislative proposals in her home state. At the same time, the Harris administration could focus on building on the Biden administration’s focus on obtaining voluntary agreements from major tech companies to tackle AI based on its California background and connections. The Biden administration has largely focused its efforts on obtaining voluntary agreements from major tech companies to address AI, and a Harris administration would certainly build on this approach.

A Trump administration

A Trump administration is expected to undo most of the Biden administration’s AI regulatory efforts related to the workplace, especially any measures that could be seen as stifling innovation or that aim to restrict the “freedom of expression’, or who are openly pro-union. Most notably, a Trump administration would likely revoke the Biden administration’s Oct. 30, 2023 executive order on the “safe, secure, and trustworthy development and use of artificial intelligence” amid concerns it stifles innovation. The AI ​​Executive Order provided broad guidance to a wide variety of federal agencies to address AI. The Trump administration would also likely repeal the Blueprint for an “AI Bill of Rights,” which addressed the possibility of employers using technologies for anti-union purposes.

A Trump administration would also be more likely to work with and involve technology companies in the development of AI regulatory policy.

At the federal level, a Trump administration could revoke certain AI guidelines issued during the Biden administration. For example, a Trump administration would likely revoke the NLRB’s General Counsel Memorandum, which warns employers that the use of electronic surveillance and automated management technologies is likely to violate employees’ rights under the National Labor Relations Act. Other AI guidelines from agencies would also likely be withdrawn. For example, DOL’s Wage and Hour Division (WHD) issued AI guidance in April 2024 through a Field Assistance Bulletin (FAB). The FAB notes that “employers have reportedly created systems to predict the likelihood that certain locations will unionize based on employee surveys. and data analysis.” The FAB also states in a footnote that “the use of electronic monitoring or AI systems to identify organizing activities may raise compliance issues under the National Labor Relations Act” and cites the aforementioned NLRB General Counsel memorandum. However, WHD does not enforce the National Labor Relations Act, nor has it entered into an AI interagency agreement with the NLRB. For these reasons, it is expected that WHD’s FAB will be withdrawn. A Trump administration would likely address AI-related wage and hour issues through opinion letters. An opinion letter is an official written opinion from an agency on how a statute, its implementing regulations, and related case law apply to a specific situation, presented by the person or entity requesting the opinion. DOL’s Office of Federal Contract Compliance Programs in a Trump administration may also issue opinion letters to address certain AI risks.

The immediate impact of a Trump administration on federal agencies’ AI regulations may be limited, as Democrats will likely continue to hold majorities in the EEOC and NLRB for a significant portion of his administration.

Regardless of the outcome of the election, recent history suggests that federal agencies will proceed cautiously in regulating AI. The EEOC hasn’t issued AI guidance in about a year and a half. Meanwhile, the NLRB has not issued guidance in two years. Moreover, the recent Supreme Court Runner Clear This decision will undoubtedly impact AI regulatory efforts regardless of the outcome of the presidential election.² In a dissent, Justice Elena Kagan specifically cited the rules regulating AI as an illustration of a specific area of ​​regulation now in jeopardy.

States

While the presidential election will shape federal policy, its overall impact on regulating AI may be limited because most AI regulatory efforts occur at the state level. States have been more proactive in developing laws around the use of AI, especially in the employment context. State governments implement a range of regulations, and these frameworks are expected to continue to evolve regardless of the next administration. As a result, companies will likely face varying AI regulations across states, reducing the direct impact of federal policy changes resulting from the presidential election.

Conclusion

Overall, the United States has thus far taken a light-hearted approach to regulating AI in the areas of labor and employment. The US approach is also often described as more decentralized, meaning that AI regulation increasingly takes place at a more local level. Thus, the presidential election itself is unlikely to have as dramatic an impact on AI regulation as it has on other labor and employment issues, and a light-hearted approach to regulating AI will almost certainly persist regardless of who wins the election.