Opinion: State, federal law updates and AI liability at work

Lynne Haggerman

From the state to the federal level, employers must address several changes impacting policies, procedures and legal compliance. In addition, artificial intelligence is growing in popularity, resulting in potentially more liability issues that must be addressed, such as discrimination, privacy, intellectual property rights and copyright infringement. Let’s dig into these topics.

Siddens Bening Hands-Free Law
Effective in Missouri on Aug. 23, holding or using any electronic communications device while driving is prohibited, including speaking, reading, watching videos/movies and entering/sending information. Usage of navigation-related data and hands-free or voice-operated features are permitted. Citations will begin Jan. 1, 2025, but warnings will be issued until then.

Religious accommodations
Under Title VII of the Civil Rights Act, the U.S. Supreme Court now requires a company to demonstrate a greater level of harm before denying a religious accommodation based upon an undue hardship for the establishment. The court held that a business is required to show the religious accommodation would result in substantial increased costs in relation to the conduct of its particular organization. A fact-specific inquiry must be held, including the practical impact of granting the religious accommodation in light of the nature, size and operating cost to the corporation. A religious accommodation affecting co-workers is only an undue hardship if the enterprise is also able to show those impacts affect the conduct of the employer.

Davis Bacon Act
The Davis Bacon Act governs prevailing wages for construction team members working on federal contracts. The final rule for deciding the applicable prevailing wage rate returns to the 1982 three-step process. First, if 50% or more of the wage rates in a worker classification are the same, that is the applicable prevailing wage. Second, if there is not a majority wage rate, the applicable prevailing wage is the wage rate earned by the greatest number of workers, provided that at least 30% earn that rate. Third, if no wage rate is earned by at least 30% of workers in the classification, companies must pay a weighted average pay rate. Urban and rural wage rates may no longer be separated. The same steps must be utilized in determining the prevailing wage rate for fringe benefits.

The “site of work” is redefined and might now include flaggers and truck drivers. Clauses alerting contractors of required compliance of the act no longer have to be in contracts; the burden is now on contractors to ascertain if compliance is mandated. Businesses may not retaliate against whistleblowers. Enhanced recordkeeping is required. The Department of Labor is now permitted to withhold payments for failure to comply.

Artificial intelligence
Three primary problems have arisen regarding using AI in organizations. First, by inputting sensitive personnel data into an AI tool, an establishment may lose control of the data and the information become publicly available or disclosed as a result of a data breach. Second, evolving AI products are now claiming the ability to predict employee misconduct, foretell individual turnover and screen job candidates more effectively and efficiently than a human being. However, the reliability of AI output fluctuates significantly and liability becomes an issue. The U.S. Equal Employment Opportunity Commission recently announced a first-of-its-kind discrimination lawsuit settlement involving a corporation using AI that rejected older applicants. Using AI to predict associate behavior in order for human resources and management to attempt prevention of the unwanted, anticipated behavior may result in discrimination and will likely be seen by laborers as unfair and a privacy issue. Third, if an enterprise uses AI to create work products, the work might not be considered intellectual property, and liability might exist for copyright infringement due to not obtaining permission from copyright owners.

What to do
Employers can take several steps to minimize liability related to these matters. First, update or create driving policies in employee handbooks. Second, modify religious accommodation policies and revisit recent requests to determine if they hold up under the new standard. Third, review the details of changes to the Davis Bacon Act to ensure compliance. Fourth, ascertain current AI usage, develop policies and ensure adherence to all relevant employment, privacy and copyright laws. Develop and implement a similar policy for how company vendors may use AI.

Lynne Haggerman holds a master of science in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.