April 29, 2024

DOL WHD Issues Field Assistance Bulletin on AI, FLSA, FMLA & more

On April 29th, the U.S. Department of Labor’s Wage and Hour Division issued its first Field Assistance Bulletin of 2024, “Artificial Intelligence and Automated Systems in the Workplace Under the Fair Labor Standards Act and other Federal Labor Laws.”

In summary, the bulletin reminds employers, “AI and the use of automated technologies for scheduling, timekeeping, and tracking employee location may undercount hours worked, particularly during possible break times, when employees perform work in multiple locations, or when employees have periods in which they are waiting to be engaged. Regardless of the technologies and systems used, employers are responsible for ensuring that they are paying employees for all hours worked under the law.”

The rules applied in the FAB are not new. The FLSA itself has not changed. What has changed is how employers monitor hours worked. Do you rely on one or more automated technologies to track time worked? If so, avoid these pitfalls:

  1. Idle time. Systems that measure and analyze metrics of worker productivity or activity using computer keystrokes, mouse clicks, website browsing, presence and activity in front of a web camera determine when an employee is “active” or “idle.” These may inadvertently fail to count time the employee was working away from the computer.
  2. Meal and certain rest periods. Systems that automatically deduct meal breaks and other longer break periods from an employee’s compensable work hours, even if the employee is not completely relieved from duty, such as working through part of a meal period.
  3. Time spent waiting to be engaged. Systems that assign tasks to workers based on workflow, algorithms, and may not take into account the time that an employee, such as a warehouse or hotel worker, is waiting for the next assignment.
  4. Travel time. A GPS or other system that records only the time the worker spent at a particular worksite but may fail to account for travel time between worksites or hours worked at other locations and may result in minimum wage or overtime pay violations.
  5. Calculating Overtime. Payroll systems that may not properly calculate an employee’s regular rate of pay for overtime calculations when the employee is paid at different rates for different jobs, shifts, days, or is paid a non-discretionary bonus.

As described above, is an automated system fails to count all hours worked, it may improperly deny an employee FMLA leave who is otherwise qualified. Chat bots may ask questions that are not authorized such as requesting too much medical information.

Nursing Mothers. The FLSA provides job-protected breaks for a nursing employee to express milk.  A system that includes productivity scoring and monitoring systems that penalize a worker for failing to meet productivity standards or
quotas due to the worker having taken pump breaks would violate the FLSA.

Anti-Retaliation Protections. The use of AI and other automated systems to surveil the workforce to detect, target, or monitor workers whom the employer suspects have filed a complaint with WHD or have cooperated with WHD investigators could constitute unlawful retaliation. Using such systems to monitor workers whom the employer suspects are engaging in union organizing and then taking an adverse employment action based on that surveillance would likely violate the NLRA, too.

DOL WHD’s Reminder: The bulletin refers to “human oversight” at least three times, “Employers should exercise responsible human oversight when using such systems to ensure that they are properly accounting for and compensating employee work hours.”