Beltway Buzz, May 17, 2024

DOL Issues AI Principles for Developers and Employers. Pursuant to President Biden’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, this week the U.S. Department of Labor (DOL) released guidance it refers to as “Artificial Intelligence and Worker Well-being: Principles for Developers and Employers.” The nonbinding principles, which took 199 days to draft, “are not intended to be an exhaustive list but instead a guiding framework for businesses.” The principles are included below verbatim:

• [North Star] Centering Worker Empowerment: Workers and their representatives, especially those from underserved communities, should be informed of and have genuine input in the design, development, testing, training, use, and oversight of AI systems for use in the workplace.
• Ethically Developing AI: AI systems should be designed, developed, and trained in a way that protects workers.
• Establishing AI Governance and Human Oversight: Organizations should have clear governance systems, procedures, human oversight, and evaluation processes for AI systems for use in the workplace.
• Ensuring Transparency in AI Use: Employers should be transparent with workers and job seekers about the AI systems that are being used in the workplace.
• Protecting Labor and Employment Rights: AI systems should not violate or undermine workers’ right to organize, health and safety rights, wage and hour rights, and anti-discrimination and anti-retaliation protections.
• Using AI to Enable Workers: AI systems should assist, complement, and enable workers, and improve job quality.
• Supporting Workers Impacted by AI: Employers should support or upskill workers during job transitions related to AI.
• Ensuring Responsible Use of Worker Data: Workers’ data collected, used, or created by AI systems should be limited in scope and location, used only to support legitimate business aims, and protected and handled responsibly.

It remains to be seen whether one or more of these principles will be the basis for more robust guidance, rulemaking, or legislation in the future.

Senate Committee Advances Bill Prohibiting Arbitration of Age Claims. Late last week, the U.S. Senate Committee on the Judiciary voted to advance the Protecting Older Americans Act of 2023 (S.1979) by a vote of 15–6. The committee held a hearing in April 2024 on the bill, which would prohibit arbitration of age-related discrimination claims. Republican Senator Lindsey Graham (SC)—who is a cosponsor of the bill—voted in favor of the legislation, as did fellow Republicans Josh Hawley (MO), Chuck Grassley (IA), and John Kennedy (LA). With four Republicans already on board, it is quite possible that the bill could pass the Senate.

OSHA Heat Standard Moves Forward. At a recent meeting, the Occupational Safety and Health Administration’s (OSHA) Advisory Committee on Construction Safety and Health “unanimously recommended OSHA move forward expeditiously on the Notice of Proposed Rulemaking” to implement a heat standard for indoor and outdoor settings. As a reminder, John D. Surma and Savannah M. Selvaggio have an analysis of a “regulatory framework” that OSHA released in 2023 that forecasts what might be included in a proposed rule. The most recent regulatory agenda does not set forth a target date for when such a proposal might be issued.

Republican Legislators Seek to Rescind DOL’s Fiduciary Rule. It was a busy week for Senator Bill Cassidy (R-LA), who, in addition to dropping the defined benefit pension plan transparency bill mentioned below, also introduced a Congressional Review Act resolution to rescind the DOL’s fiduciary rule. Republican Senators Ted Budd (NC) and Roger Marshall (KS), as well as Democratic Senator Joe Manchin (WV), are cosponsors of the resolution. Representative Rick Allen (R-GA) introduced the companion resolution in the U.S. House of Representatives. Even if the resolution passes both chambers, President Biden will likely veto the measure. In this Congress, there have been approximately fifty Congressional Review Act resolutions introduced to rescind agency rules.

Republican Lawmakers Want Union Transparency. Federal law allows employers to speak with employees about the pros and cons of unionization, as long as they don’t threaten employees (e.g., “we’ll fire you if you organize”) or make promises (e.g., “we’ll give you all a right if you don’t organize”). Unions, on the other hand, do not have any limitations on what they can say during union organizing drives, but two recent Republican-sponsored bills would require transparency and accountability from unions when trying to organize employees.

• Senator Bill Cassidy, the ranking member of the U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee, introduced the “Making All Fund Information Available Act.” The bill would require union organizers to provide information regarding the financial health of their defined benefit pension plans to employees they represent or are attempting to organize. Previously, Senator Cassidy helped secure the return of $127 million that was incorrectly provided to the Central States Pension Fund pursuant to the American Rescue Plan Act (ARPA).
• Representative Burgess Owens (R-UT) introduced the “Start Applying Labor Transparency (SALT) Act” (H.R. 7784) to require more transparency from union salts, who are professional union organizers who seek employment at a specific employer with the sole intention of organizing the workforce. Currently, employers and their consultants are required to notify the DOL when they enter into agreements to provide assistance during a union organizing campaign, but there is no similar requirement when unions engage professionals for essentially the same purpose. The SALT Act would amend the Labor-Management Reporting and Disclosure Act of 1959 to require unions and their agents to file reports when deploying salts.

When Congress Banned Criticism of the United States. On May 16, 1918, President Woodrow Wilson signed into law the Sedition Act of 1918. Passed as amendments to the Espionage Act of 1917, the law was intended to suppress growing disapproval of the United States’ participation in World War I. The Sedition Act, in part, made it unlawful to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States.” With the war ending just six months later in November 1918, prosecutions under the Sedition Act were few. However, Socialist Eugene V. Debs was convicted under the Sedition Act for undermining the country’s wartime draft, and he served almost two years in federal prison until President Warren G. Harding commuted his sentence in 1921. (Also note our blurb on Schenck v. United States, upholding a prosecution under the Espionage Act.) Incredibly, the constitutionality of the Sedition Act was upheld by the Supreme Court of the United States in Abrams v. United States (1919), but the law was repealed in 1920.