Monday, October 30, 2023: President Biden’s Supersized Executive Order on AI Includes Directives for US DOL & Many Other Agencies
EO Contains 3 Sections with Specific Directives for US DOL
It’s “all hands-on deck” for the federal government under a sweeping new Executive Order (“EO”) on Artificial Intelligence (“AI”). President Biden announced the lengthy and detailed EO at a press event on Monday. Later that day, the White House posted the “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” on its website. The White House also posted a corresponding “Fact Sheet” on Monday several hours before the EO itself was posted. On Wednesday, the EO was published in the Federal Register, taking up 36 pages and numbered as EO 14110. Three of the EO’s 13 Sections contain specific directives to the U.S. Secretary of Labor. The President’s Executive Order also has implications for both employers and federal contractors, as called out below.
How Does the EO Define AI?
Section 3 (b) of the EO states:
“The term ‘artificial intelligence’ or ‘AI’ has the meaning set forth in 15 U.S.C. 9401(3): a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.” (embedded link added)
Directives to the Secretary of Labor
While the E.O. makes no mention of the Equal Employment Opportunity Commission, it contains numerous specific directives to the U.S. Secretary of Labor.
Section 5 (e) provides:
“Within 45 days of the date of this order, for purposes of considering updates to the ‘Schedule A’ list of occupations, 20 CFR 656.5, the Secretary of Labor shall publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.”
Section 6 (a) (ii) states:
[Within 180 days of October 30, 2023 = April 27, 2024: NOTE: 2024 is a Leap Year] “[t]o evaluate necessary steps for the Federal Government to address AI-related workforce disruptions, the Secretary of Labor shall submit to the President a report analyzing the abilities of agencies to support workers displaced by the adoption of AI and other technological advancements.”
Sections 6 (a) (ii) (A) and (B) detail the minimum requirements for the report.
Section 6 (b) (i) directs the Secretary of Labor “to [in consultation with other agencies and with outside entities, including labor unions and workers, as the Secretary of Labor deems appropriate] develop and publish principles and best practices for employers that could be used to mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits. The principles and best practices shall include specific steps for employers to take with regard to AI.”
Sections 6 (b) (i) (A) through (C) detail the minimum requirements for that report, which is due within 180 days of October 30, 2023). The minimum requirements include covering:
“(A) job-displacement risks and career opportunities related to AI, including effects on job skills and evaluation of applicants and workers;
(B) labor standards and job quality, including issues related to the equity, protected activity, compensation, health, and safety implications of AI in the workplace; and
(C) implications for workers of employers’ AI-related collection and use of data about them, including transparency, engagement, management, and activity protected under worker-protection laws.
(ii) After principles and best practices are developed pursuant to subsection (b)(i) of this section, the heads of agencies shall consider, in consultation with the Secretary of Labor, encouraging the adoption of these guidelines in their programs to the extent appropriate for each program and consistent with applicable law.
(iii) To support employees whose work is monitored or augmented by AI in being compensated appropriately for all of their work time, the Secretary of Labor shall issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections that ensure that workers are compensated for their hours worked, as defined under the Fair Labor Standards Act of 1938 […] and other legal requirements.”
Section 7.3 (a) requires the Secretary of Labor to, by October 30, 2024, […] publish guidance for Federal contractors regarding nondiscrimination in hiring involving AI and other technology-based hiring systems.
Other Notable Provisions
In addition to the specific directives for the Department of Labor, the EO requires the Chair of the Council of Economic Advisors to, within 180 days of October 30, 2023 (April 27, 2024), prepare and submit a report to the President on the labor-market effects of AI. (Section 6 (a)(i))
Editor’s Note: This report could significantly contribute to the reduction of federal agency budgets by projecting the fewer number of federal employees needed to perform existing functions, for example, as AI replaces the need for employees, especially analysts, report writers, managers, and customer service attendants.
The EO also contains specific assignments for the White House Office of Management and Budget (“OMB”), the Office of Personnel Management (“OPM”), the Consumer Financial Protection Bureau, the Department of Housing and Urban Development, the Department of Health and Human Services, the State Department, the Department of Homeland Security, the Department of Agriculture, the Department of Commerce, the National Institute of Standards and Technology (“NIST”), and the Department of Energy regarding non-discrimination, data privacy, security, and other matters. Furthermore, it contains instructions to the various agencies for supporting and guiding private industry. It also creates a “White House Artificial Intelligence Council” (Section 12).
Departmental Statements/Actions of Note
On Monday, the Department of Commerce/NIST released a statement and posted a webpage detailing their responsibilities under the E.O.
Wednesday, the OMB posted a 26-page proposed guidance to federal agencies on how they should implement Biden’s AI Executive Order. The OMB’s press release on this guidance is here. The guidance instructs federal agencies to name a chief AI officer to accelerate the adoption of AI tools within agencies and manage the associated risks. On Friday, the OMB published a Notice in the Federal Register to open a public comment period on this guidance. Comments are due on December 5, 2023, and you may submit them here.
Section 10.2 of the EO calls upon the OPM and other agencies to take the lead in planning “a national surge in AI talent in the Federal Government. On Wednesday, the OPM tweeted/posted a link on Twitter/X to a Federal News Network story detailing the OPM’s assignments to that end. Among other things, it notes that the AI.gov website contains a portal for potential job applicants to apply to different fellowship programs and federal government jobs to build and govern AI.
The AI.gov website also details the Biden Administration’s actions regarding AI, including the Blueprint for an AI Bill of Rights (see also our story here) and NIST’s AI Risk Management Framework (see also our story here.)
Senate Subcommittee Hearing
On Tuesday, the Employment and Workplace Safety Subcommittee within the U.S. Senate Committee on Health, Education, Labor, and Pensions Committee held an almost two-hour hearing on “AI and the Future of Work.” At the outset, Subcommittee Chair Senator John Hickenlooper (D-CO) mentioned the President’s new EO, stating “[t]his is just the beginning.”