Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in Law360 Employment Authority, in “Progressive Legislative W&H Push Set to Continue in 2024,” by Daniela Porat. (Read the full version – subscription required.)
Following is an excerpt:
State and city lawmakers are expected to keep passing increased worker protections in the coming year, including expanded leave laws, salary history bans and minimum pay standards for app-based workers — signaling a sustained shift in workplace norms, attorneys said. …
Addressing AI
Advancements in technology and artificial intelligence present new challenges to age-old wage and hour issues, and both legislation and litigation will likely force employers to catch up, attorneys said.
One area of wage and hour law that is likely to be affected by generative AI are the duties tests under the white collar exemptions, said Adam Forman, member of management-side firm Epstein Becker Green.
Workers may be exempt from the Fair Labor Standards Act's overtime protections if they perform certain duties and are paid at least a minimum weekly salary that doesn't fluctuate based on hours worked or productivity.
To qualify for the administrative exemption, for example, an employee's primary duty must be "the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers" and must include "the exercise of discretion and independent judgment with respect to matters of significance," according to the FLSA's regulations.
Ostensibly, AI is meant to do some of the heavy lifting to free up workers to do other tasks, Forman said.
"I think you could run into areas of concern if the AI is now exercising discretion and independent judgment that the worker used to be doing," he said.
Legislation oftentimes requires drawing lines, Forman said, which is challenging when it comes to rapidly evolving technology.
"I think instead of drawing new lines and giving guidance, I think there will be those who argue that the existing lines are sufficient," he said. "Employers will either have to fit within or lose the exemption."
