Federal contractors are well aware the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is really interested in how organizations are deploying artificial intelligence and/or other “automated” systems when making employment selection decisions.
The agency’s newly revised audit Scheduling Letter and Itemized Listing now demands that contractors “Identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems, or other technology-based selection procedures.”
The big question on everyone’s mind is what the OFCCP intends to do with that information, with the fear of course being that the OFCCP is gearing up to take contractor employers to enforcement over their use of AI. And while that may indeed be the agency’s ultimate goal, like the rest of the Federal government, the DOL is lacking any enforceable regulations to treat AI tools differently than other employee selection tools.
However, the White House just put a clock on the OFCCP’s efforts. In a 54-page executive order, President Biden lays out sweeping directives for all relevant federal agencies to contribute to studies, and form guidelines and recommendations.
Notably, the Secretary of Labor has just one year, until October 30, 2024, to publish guidelines for federal contractors regarding “nondiscrimination in hiring involving AI and other technology-based hiring systems.”
The OFCCP does not have a year to present guidelines to the White House, they have just one year to publish “guidance” for federal contractors. So, the $10,000 question is how the OFCCP will interpret that term, “guidance.”
It is easy for the OFCCP to publish guidance for federal contractors, but there are some hoops the agency must jump through if they want any of that guidance to be enforceable. How much time pressure the OFCCP is under here depends largely on whether they intend to publish some FAQs on the matter or provide something more robust like the Uniform Guidelines on Employee Selection Procedures (which are not “guidelines” at all, but enforceable obligations).
In the meantime, the OFCCP needs to understand what AI tools are out there and how they are actually being used by employers to inform their guidance. As it stands, the agency is primarily information-gathering. The more information you can provide, the more you can participate in the conversation about future regulation (though indirectly).
We will, of course, monitor the situation and alert readers to any guidance or rulemaking that results from this. If you have questions about this or any other OFCCP-related matter, feel free to drop us a line at BCGi@Biddle.com.
