The U.S. Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) recently announced that federal contractors should regularly monitor their use of artificial intelligence (AI) and automated systems to ensure that their use does not negatively impact applicants or employees. It has published new guidance warning that people need to do this. protected group.
quick hit
- OFCCP has released its first detailed guidance on federal contractors' use of AI and automation systems.
- This guidance requires federal contractors to regularly monitor whether their AI and automated systems are having disparate or adverse impacts on protected groups and to take steps to reduce those impacts or use different tools. It instructs you to use.
- This guidance further clarifies that federal contractors are ultimately responsible for meeting their anti-discrimination and affirmative action obligations, regardless of whether they use third-party vendors to implement such tools. I'm doing it.
On April 29, 2024, OFCCP released new guidance titled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors,” clarifying federal contractors’ compliance obligations through the use of AI and automated decision-making technology. Did. Key to this guidance is that federal contractors must monitor the use of such technology and hold third-party vendors accountable for the impact of the technology, regardless of whether they provide such systems. It is a clarification that it is owed.
Although AI and automated systems technologies have the potential to increase efficiency and improve decision-making by federal contractors and other employers, the OFCCP Guidance states that these technologies carry risks of discrimination and bias, and that OFCCP Warnings that you may violate laws enforced by the.
OFCCP's guidance states that “AI may introduce bias and discrimination into various employment decision-making processes.” “As a result, if not properly designed and implemented, automated systems and AI can reproduce or deepen the inequalities that already exist in the workplace and violate workers’ civil rights.”
The release of OFCCP's guidance coincided with the release of similar guidance by the DOL's Wage and Hour Division (WHD) regarding the use of AI and automated systems regarding the application of the Fair Labor Standards Act (FLSA) and other federal labor standards . workplace. Both actions come six months after President Biden issued Executive Order 14110 on October 20, 2023, calling for a “coordinated, federal-wide approach” to the responsible development and implementation of AI. .
Level setting
OFCCP's AI guidance primarily tracks definitions of the technology by other federal agencies, such as guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC). This guidance, similar to the National Artificial Intelligence Initiative Act of 2020, defines AI as “an entity that is capable of making predictions, recommendations, or decisions that affect a real or virtual environment for a set of human-defined goals.” machine-based system. ” The guidance also uses the EEOC’s definition of “algorithm,” which is “a set of instructions that a computer can follow to accomplish some purpose.”
However, OFCCP guidance further defines “automated system” as “broadly defined as:”[ing] Software and algorithmic processes, including AI, used to automate workflows and enable people to complete tasks and make decisions. ” The guidance calls for “criteria to be used in making hiring decisions,” including automated systems that sift through resumes to identify qualified applicants and “defining parameters for filtering and reviewing resumes.” It shows an example of an AI that determines.
Compliance obligations
This guidance reminds federal contractors that existing compliance obligations apply to the use of AI and automated systems.
- Production and record management– OFCCP guidance makes clear that federal contractors' manufacturing and record-keeping compliance obligations extend to the use of AI and automated systems. The guidance states that federal contractors:[m]“Keep records and ensure the confidentiality of records.” This includes keeping records of “resume searches from both external website searches and internal resume databases, including the substantive search criteria used.” The federal contractor further stated that “[c]Engage with OFCCP by providing the necessary requested information about AI systems. ”
- Reasonable accommodation-This guidance clarifies that a federal contractor's obligation to provide reasonable accommodation extends to the use of AI and automated systems, including electronic job application systems.
- Selection procedure—This guidance states that if federal contractors use AI or automated technology in selection procedures, they must “use strategies that meet applicable OFCCP-enforced antidiscrimination laws and the Uniform Guidelines for Employee Selection Procedures (UGESP) It is clear that it is necessary to verify the This includes obtaining “the results of system bias assessments, bias mitigation efforts, and/or system equity studies.” Federal contractors must also: (1)[c]“Conduct routine independent assessments of bias and/or inequitable outcomes'' and (2) “[e]Explore alternative selection procedures that are potentially less discriminatory. ”
Third-party AI vendor
This guidance requires OFCCP to provide federal contractors with non-discriminatory and and affirmative action obligations. The guidance states that the law enforced by OFCCP “does not impose separate obligations on vendors” and allows federal contractors to “delegate” nondiscrimination and affirmative action obligations to third-party vendors. It is said that it is not possible. Instead, compliance risks and obligations remain with the contractor utilizing the technology.
These duties include “relevant requested information and answers to questions regarding the design of screening or selection systems and the use of AI during compliance reviews or investigations, including information about whether alternative approaches have been considered or tested. ” requirements are included. Such requirements can be burdensome to federal contractors because it may be difficult to access or obtain such information from vendors. However, the guidance specifies that “federal contractors cannot escape responsibility for the adverse effects of discriminatory reviews conducted by third parties, such as staffing agencies, HR software providers, and vendors.”
The guidance states that when using an AI vendor, federal contracts must be able to verify, among other requirements:
- Provisions in vendor agreements that require maintenance of necessary records and access to applicable records consistent with OFCCP regulatory requirements.
- The source and quality of the information collected, used as context, or analyzed by the AI system.
- “Does the vendor document and maintain the data used to collect, clean, train, and build the algorithm and the rationale for why the vendor used the data points?”
- “Vendor Protection and Privacy Policy for Data Provided by Contractors”; and
- “Important information about the vendor's algorithmic hiring decision tools, including data collected, scoring systems, and criteria for selecting or excluding applicants/candidates.”
Federal Contractor Significant Practices
The guidance outlines several “promising practices” when using AI or automated systems to avoid compliance violations, including maintaining human oversight, providing notifications, and This includes regular monitoring, secure storage of data, and ensuring the accuracy and effectiveness of the vendor's AI systems.
- human surveillance—The guidance states that federal contractors:[n]“We must not rely solely on AI or automated systems to make hiring decisions,” and must train staff on the appropriate use of these technologies. This is in line with the WHD's recommendations, which center on “responsible human oversight” of AI.
- notification– OFCCP guidance requires federal contractors to provide applicants, employees, and their representatives with advance notice that AI or automated systems are being used in the hiring process or decisions, and to provide information on what data will be collected. and states that you need to provide detailed information about what will be entered. Introduce it to the AI system. Federal contractors must also notify applicants, employees, or their representatives that they may correct or delete such data. OFCCP mentioned the ability to request data deletion, but did not indicate how contractors should prioritize this over competing record-keeping obligations.
- Daily monitoring—Key to the entire guidance is clarity on what federal contractors must do.[r]“Regularly monitor and analyze” AI and automated systems where they may have disparate or negative impacts on protected groups, including replicating patterns of systemic discrimination, before and periodically after deploying tools. need to do it. If the use of AI or automated systems causes a variety of adverse effects, federal contractors must take steps to mitigate such effects or use alternative tools.
Legal status of AI
OFCCP's AI guidance is part of a broader effort by the federal government to curb the use of AI and automated decision-making technologies due to concerns about the risks of discrimination, bias, fraud, and abuse. In April 2024, the DOL signed an updated joint statement with several other federal agencies that was originally released in April 2023.
Additionally, the Biden administration's October 2023 Executive Order (EO) requires federal agencies to balance the benefits and risks of these new technologies, requiring the DOL to “Develop and publish principles and best practices for Use such technology responsibly.
The EO followed up on the Biden administration's Blueprint for an AI Bill of Rights, which outlined non-binding recommendations for the design, use, and deployment of AI and automated decision-making systems. In addition to the DOL's guidance, the EEOC has issued guidance clarifying that AI and automated employment decision-making tools can have disparate impacts and pose problems for individuals covered by the Americans with Disabilities Act (ADA). Published.
next step
Given OFCCP's guidance and regulatory focus on AI, federal contractors using AI should review their current use of AI or automated systems to make hiring and other employment decisions. and whether third-party vendors use such technology. Additionally, federal contractors should review their contracts with vendors to ensure they have access to necessary information about the data their technology uses or collects, and how their systems are designed to provide such information to federal regulators. you may need to check.
