DOL to Employers: Using artificial intelligence does not excuse compliance with the FLSA and FMLA

On Monday, the  U.S. Department of Labor’s Wage and Hour Division published new guidance reminding employers that the use of artificial intelligence and other automated technologies to track work hours, optimize employee performance, and administer leaves of absence does not excuse compliance with the laws that the WHD enforces, namely, the Fair Labor Standards Act and the Family and Medical Leave Act.

For example, an employer must exercise reasonable diligence to learn about the hours employees work, whether scheduled or not, and to keep accurate records of hours worked. Although employers can leverage AI to measure and analyze worker productivity or activity metrics, the WHD recommends “proper human oversight” to accurately determine hours worked. The WHD warns that “artificial intelligence or monitoring systems that use keystrokes, eye movements, internet browsing, or other activity to measure productivity are not determinative of whether an employee is performing ‘hours worked’ under the FLSA.”

Likewise, “AI does not relieve an employer of the responsibility to ensure that records accurately reflect breaks taken and that employees are properly compensated for all hours worked.” Employers using AI to assign tasks to employees “must ensure that they accurately account for increments of time when the employee was waiting for their next assigned task, as well as the time the employee was completing assigned tasks, regardless of technologies used to assign tasks, set schedules, or complete other management functions.” Also, tracking software that records only the worker’s time at the worksite as compensable work hours and omits travel time between worksites or hours worked at other locations could result in minimum wage or overtime pay violations.

The WHD also encourages employers to exercise caution when using AI or other technologies to calculate wage rates to ensure employee pay complies with the FLSA. For example, “some AI systems use automated algorithms to independently calculate and determine workers’ rates of pay based on a variety of data and metrics collected by the systems…Employers should exercise proper human oversight to ensure that such systems pay employees the applicable minimum wage and accurately calculate and pay an employee’s regular rate and overtime premium.”

Finally, the WHD has a few tips for employers using AI to administer FMLA leave:

• Ensure that timekeeping programs correctly determine the hours an employee has worked, which impacts FMLA eligibility
• Avoid automated systems that test for eligibility more frequently or ask for more medical information than the FMLA permits, and
• Do not use AI to track leave use to target FMLA leave users for retaliation or discourage using such leave.