Formed in July, the Robotics Practice Group consists of 66 members, divided between a ?Core? group and a general group.
The Core group is comprised of experts in their specialized field of employment and labor law, such as OSHA, privacy, trade secret law, legislation/ regulations, e-discovery and traditional labor law.
In an exclusive interview with Robotics Business Review, Gary Mathiason, chairman of the board and co-chair of the robotics and corporate compliance practice groups, talks about human labor displacement, human enhancement, the debate over regulation, and much, much more.
Part I: Technology changes the workplace
Thanks for taking the time to speak with Robotics Business Review and for providing our readers with a very useful primer “Ten Areas of Employment and Labor Law Most Impacted By Robotics, Human Enhancement Technologies, and the Growth of AI” (see PDF download) on the issues created by robotics, telepresence and human enhancement technologies create in the sphere of employment law.
RBR: I’d like to begin by asking you about the genesis of the robotics practice group. Where did that idea come from? And why is now is the right time?
GM: Since its beginning, Littler has been an entrepreneurial law firm with a passion for identifying and preparing for the workplace of the future. It is this visionary component of the firm that has positioned us for the emergence of the 21st century robotics industry.
We have a tradition of seeing workplace trends often years in advance. And we have developed compliance solutions and representational capabilities even before most employers are fully aware they are needed. That’s what we are now doing with robotics.
We also have a tradition of highlighting emerging areas of legal practice. Littler was originated in about 1942 by Bob Littler, an adjunct professor at Stanford who was the Pacific Coast Director of the War Labor Board. In the beginning, the firm was devoted exclusively to what was then called labor law.
We have a tradition of seeing workplace trends often years in advance.
By the 1970?s, our law firm had 3 or 4 major practice areas heavily focused on anti-discrimination law and organized labor, and that number soon expanded to reach the 45 or so practice areas we have today addressing futuristic topics such as the Genetic Information Non-Discrimination Act (GINA) and human job preservation legislation and regulations.
If you look back at the growth of the firm and our practice, the underlying forces that catapulted everything forward was technology?s march into the workplace and globalism.
Littler pioneered employment and labor law issues and solutions surrounding the Internet, its multifaceted workplace applications and the erosion of privacy.
Having one of the first and most visited law firm websites, Littler became a recognized Think Tank and publisher on these topics. In its early use, people treated email like speech and didn?t realize that they were leaving a record that would become relevant in any form of workplace litigation.
In what became one of the most widely used training videos, ?Litigation Landmines,? Littler cautioned employers on the proper use of email, which had become the equivalent of evidence mail. Today, digital communications have become ubiquitous, expanding from email to social media and texting. More than half of all evidence sought in workplace litigation is digital. Littler was at the vanguard of recognizing the importance of e-discovery and was among the first law firms to have a dedicated team of e-discovery attorneys.
An example of an area in which we highlighted new areas of legal practice was in our response to the AIDS crisis. The AIDS epidemic was first identified in San Francisco. Before it was recognized as a national and international crisis, we developed an entire practice area addressing the effects of AIDS in the workplace.
Littler developed solutions for employee education, hiring and how to deal with an employee who was diagnosed with AIDS. While we addressed privacy and disability discrimination issues, much of our advice was a common-sense education about how AIDS was spread and the lack of danger to coworkers given the types of activities in most workplaces.
That preventive and educational template actually has worked well over the years as our focus has increasingly been on the introduction of new technologies into the workplace.
Currently, we forecast that robotics and artificial intelligence systems will change the workplace more during the next decade than all other technologies combined.
Accordingly, Littler has followed its historical path of responding with the formation of its Robotics Practice Group.
RBR: What type of clients are you hoping to attract to the Robotics Practice Group?
GM: Littler currently has 30,000 clients that are employers in almost all kinds of industries and businesses. Out of that 30,000, many in U.S. manufacturing are now using some form of industrial robotics.
However, with the breakthroughs in cloud computing, sensor technology, self-learning software and data analytics, we expect most of our clients worldwide will become users of robotics. As price continues to decline, every industry will be impacted, from health care and entertainment to lodging and hospitality.
But in its initial formulation, the Robotics Practice Group will be focusing on becoming employment and labor counsel to the robotics industry and to entities that are manufacturing, producing, developing and selling or leasing robotics into the workplace.
The Robotics Practice Group will concentrate its initial efforts there because that way we learn the industry and have an influence on the development on the products themselves. Then, we will quickly turn to what will become the largest part of the business, the users, in an effort to facilitate the deployment of robotics in the workplace consistent with employment and labor law requirements.
The robotics explosion is coming, and we want to find ways of making the legislative and regulatory challenges, as well as the compliance requirements, less disruptive and more quickly accommodated.
It is a mistake to believe that the adoption of robotics won?t happen because of labor and employment law restrictions. Competitive forces and the ability to go to other jurisdictions worldwide will inevitably mandate the deployment of these brilliant new machines.
Nonetheless, it will be extremely problematic if the robotics industry doesn?t address legislative and regulatory challenges in advance, as well as assess existing employment law compliance requirements. Most of these requirements, including ones that are more hidden, can be addressed in advance and will help shape the products.
The real potential exists to blend workplace compliance laws and regulations together with the developing technology.
RBR: Broadly speaking, there seem to be two schools of thought in relation to the question of whether the robotics industry should be heavily- or lightly-regulated and also as to whether robotics-specific legislation is the best way forward.
Some argue that the absence of robot-specific legislation and regulation hampers growth in the industry and makes investors jumpy. Others advocate that a combination of light regulation alongside existing product liability and case law, will take care of potential liabilities. I wonder whether you would have anything to say to the latter group, in particular?
GM: I think both camps are right.
Staying frozen because you are concerned about the liability and trying to build the perfect product and not risking potential liability is going to impose a horrific limitation and unaffordable delays. In that sense, I side with the people that for the moment are setting aside concerns about potential liability and perfect compliance with workplace laws in favor of moving forward.
But the two approaches must be harmonized. Those who minimize risk or only casually examine intellectual property and product defect liability risks that miss the much larger area of workplace laws, deny themselves the opportunity to mitigate these risks during the product development phase.
On the other hand, you can?t mitigate completely and there is going to be some risk. Employers can try to make practical adjustments for major risks, use insurance and become familiar with the legal risk landscape. Ultimately, we may be required to promote additional legislation that will better balance risk and the great benefits and abundance that this new technology will bring to society.
Currently, most robotics-specific legislation is premature as the technology is still developing and it is difficult to predict its ultimate effects. This applies especially to those who use fear of robotics to build artificial legal barriers around jobs.
Technological disruptions have been a necessary part of our history and will continue into the future. New jobs are created and the benefits of robotics can bring a new level of societal wealth that could be used to lessen the pain of these necessary transitions.
Meanwhile, attention needs to focus on how to comply with current product liability laws, workplace health and safety requirements and dozens of employment laws that are being reshaped by judicial interpretations.
RBR: What do you think can be done to get regulators and policymakers more involved in this emerging area?
GM: The first question that should be asked is ‘Do we want more lawmakers and policymakers involved?’ because regulators and policymakers have often been architects of the word ‘No.’
A lot of employers have a basic constitution that would say, if you can avoid a regulation its better than having to comply with a new regulation.
Robotics does not fit neatly into this basic wisdom. In many areas of development, we lack the necessary information and good thinking to form workable regulations. On the other hand, in already highly regulated areas, such as transportation for example, the benefits of self-driving vehicles are so profound that most regulators are supportive.
Another concern is that a patchwork quilt of regulations will become extremely counterproductive because we live in a global world and if you have a product that you?re launching worldwide, a patchwork quilt could greatly increase compliance costs and may lead to disfavored geographies.
Eventually, robotics would benefit from some international standards. Through the United Nations, the International Labour Organization and the framework conventions, there are international standards that deal with safety in the workplace. Even though many international organizations, especially the ILO, are focused on preserving employment, the economic benefits of robotics cannot be denied.
Twenty-first century workplaces are increasingly becoming dependent on the combined efforts of people and robotics. Virtual workers empowered by robotics are no longer confined to one state or just the laws of the ?home? jurisdiction. Without becoming too philosophical, there is a growing need for globalization of employment laws and that movement is already in progress.
Part II: Technology increases opportunities and wealth
RBR: Will robots and the ubiquitous application of software and artificial intelligence take away more jobs than are created? Will the inevitable advance of technology divide us politically
GM: Whether automation and the march of robotics create more jobs than are displaced is a decades-old debate. While economics still disagree, it is difficult to deny the vast number of opportunities created in science, technology, engineering and math (STEM).
Virtually every employer using robotics and artificial intelligence has ?help wanted? signs placed throughout cyberspace. Moreover, learning is increasingly becoming available throughout the world to anyone with an Internet connection. This creates a doorway for a current and future workforce to enter the workplace even if an expensive formal education is beyond reach.
Nonetheless, the debate over jobs is intensifying and threatens to invade the political process. Recognizing how easily robots could become engaged in political warfare, it is very positive that a bipartisan Congressional Robotics Caucus has formed and is intelligently collecting experiences and knowledge as to the real effect robotics has on jobs and employment.
I?ve long been in the camp that believes technology increases opportunities and wealth resulting in a net gain in employment.
It has taken 200 years to move from a predominantly agrarian to an industrial society powered by the growth and deployment of technology. I now believe that we are experiencing an exponential growth in multiple areas of science, engineering and technology that will create the same level of change in just a single decade.
Bringing relevant skills to the workplace
The disruptive effects will be positive in many areas, including a vast increase in productivity, creating the potential for significant improvements in the worldwide standards of living. However, the speed of change inevitably will result in some increase in residual and technological unemployment, which cannot be fully offset with traditional retraining and educational programs.
The debate between creating or destroying jobs is actually a misstatement of the coming struggle. The better question is whether the current and future workforce can bring relevant skills into the workplace as fast as the requirements are changing.
The answer seems to be both ?yes? and ?no.? Human resilience and adaptation are vastly expanding as new generations enter the workplace. However, lifetime learning and retraining programs are falling behind the pace as maturing generations approach the promise of retirement.
Recognizing and experiencing this new reality will require reengineered solutions from the private sector and governments. Both conservatives and liberals may find it necessary to support programs and policies which historically have been avoided or discouraged.
The safety net will need strengthening while private sector entrepreneurism needs to be unleashed to bring the full force of teaching robots and software, the Internet and distant learning, not just into the classroom, but throughout the workplace.
RBR: Existing workplace laws are designed for a pre-robotic era, in which humans and intelligent machines keep a ‘healthy’ distance. Now that humans and robots are starting to co-exist, what kinds of challenges to existing legal principles are starting to form?
GM: The Office of Safety and Health (OSHA) has a general mandate that employers are to maintain safe workplaces. When OSHA first encountered robotics, it was in the context of fast-moving mechanical arms and moving parts that threatened harm to anyone on their path.
OSHA reasonably responded with regulations and guidelines designed to build barriers between robots and workers in factories and on assembly lines.
With the advent of brilliant new robots which are designed and programmed to work in tandem with humans, OSHA is seeing the emergence of a new world of work. Increasingly, robots are becoming as safe and safer than working with a human partner.
Breakthroughs in cloud computing, sensor technology, data analytics and self-learning software are making it possible for robots to see, touch and interact safely with humans.
One of the challenges of the near future for regulators and coworkers is to overcome decades of Hollywood script writing featuring robots as out of control, destroying their human creators or invading from space. While every day a new product is announced that heretofore was science fiction, this does not mean that the dark side of science fiction is inevitable.
New legal standards need to emerge from courts, regulators and legislators reflecting time-honored core values, not the least of which is workplace safety.
Regulating safety is one concern, but how can we promote the use and value of workplace robotics when one accident can create massive tort liability under our current laws?
Employers faced the same challenge when a workplace injury threatened virtually unlimited damages through tort litigation. This resulted in a grand bargain known as our workers compensation system.
Through legislation, workers injured in the workplace were given an administrative recovery system that promised to be swift and provided compensation regardless of fault. In exchange, tort litigation with punitive damages was sharply curtailed in favor of set recoveries.
Additionally, employers were mandated to have workers compensation insurance to provide a greater guarantee that workers would be able to be compensated for their injuries up to and including death, while employers shared the cost of the insurance and were able to include it as a cost of doing business.
Between the cost of workers compensation insurance, which can increase depending upon the industry and the safety record, OSHA mandates for a safe workplace and significant fines for violations, society underscores the importance of workplace safety. Meanwhile, the vast majority of employers treat safety as a core value needed to maintain and promote a productive work environment.
Applying the above rules to the new workplace, robotics promises to become a required part of maintaining a safe workplace. If a robot takes over a dangerous task for an employee and is harmed or completely destroyed, there is usually less liability for the employer than if a person were involved. When the impact on morale, productivity and the local community are considered, there is no comparison.
A robot is a replaceable tool while the loss of a life is irreplaceable. No employer wants to intentionally put employees at risk; workers compensation costs decrease and OSHA standards are not violated. I predict that in the not-too-distant future, OSHA will more often mandate the use of a robot as a safety measure than prohibit robots as a workplace threat.
RBR: If the robot does something that causes an injury to another worker, what would happen?
GM: The employer deploying the robot would likely not have liability due to workers? compensation coverage. It preempts normal litigation. This is not a free pass. The worker will receive compensation for the injury and the employer could be fined or otherwise sanctioned through OSHA if the use of the robot violated normal safety standards.
The employer would also suffer the reduced productivity and animus that often accompanies a workplace accident, especially if the employer is viewed as not respecting the safety of its workers.
On the other hand, the company will normally not be shut down, the workforce will not be laid off and the liability would not normally be of the size and impact to destroy the business.
Turning to the robotics company that manufactured the robot and companies who made individual parts or components, they could face product liability claims under today?s laws. This is not very different from what occurs now in the contemporary workplace.
Workers use enormous numbers of tools, equipment and materials in performing their jobs and we have that same legal liability standard. For example, every responsible company producing cutting equipment for the workplace recognizes this liability and uses the necessary standard of care.
A significant risk is that an irresponsible employee will misuse the equipment and then blame the manufacturer if harm occurs.
Moving to the world of robotics, there is no quantum leap in danger by virtue of robotics. While plaintiff attorneys would undoubtedly present a jury with an image of an out-of-control robot leaping from the screen of a Halloween horror show, the public is not that easily misled.
Moreover, one advantageous feature of many robotic systems is a data record of exactly what was happening when accidents occur. The data recovery system will be the most credible evidence of the cause of the accident. If the robot is at fault, claims should be settled and corrections made to prevent future accidents. If the robot was not the cause of the accident, it will often be able to prove its innocence.
Some of the largest and most sophisticated robots currently in use are the most recent fleets of commercial jet aircrafts. Many of these vehicles could take off, fly and land unassisted.
Due to high safety standards, careful review of accidents and black box data recoveries, manufactures and operators have focused on safety and legal liability (in some countries criminal liability). This is the safest form of travel ever available to the public.
There?s a new emphasis on human compatibility in robotics. Manufacturers are increasingly designing robots to be a companion or friend and human safety is built into every stage of the design and manufacturing process.
No evidence exists that robots are more dangerous than any other product in everyday use in our workplaces and society.
Indeed, the early evidence suggests that they, if anything, can improve human safety. Accordingly, I?m not sure that there?s wisdom or need at this time to try and create adjustment to our tort laws to provide additional protection for the robotics manufacturers.
In the long run, the entire area of tort reform needs to be examined. At that time, we should have a substantial body of quality information regarding robots and human safety.
RBR: What happens if the robot is injured? What protections and liabilities are applied?
GM: Right now, injury of a robot would be considered property damage. If the damage resulted from a manufacturing defect, liability would likely be placed on the robotics company.
If it?s an outside event that impacts the robot, then it?s just property damage like any other kind of property damage, except it may be much easier to prove who or what caused the damage due to the robots data recorder.
One can envision a futuristic trial taking place with one neighbor suing the other for intentionally damaging a domestic robot. On the witness stand is a sober-faced bright green robot explaining how its injuries occurred. When the robot is cross-examined and asked if its testimony can be corroborated, it turns to the opposing counsel and explains ?I have a video of the entire incident.?
RBR: Do you think entirely new legislation will be required?
GM: Yes, in some areas it will be required. For example, a few states including California, have passed laws to allow self-driving cars to be on the highway. Clearly, several other states will follow as our legislation and regulations are modified to address changing technology.
In general, we believe it is vital for employers, including the robotics industry, to have a voice in Washington as well as state and local government. Providing facts and expert testimony will enable lawmakers to avoid unnecessarily restrictive legislation. The Congressional Robotics Caucus is a good example of a form in which such voices can be heard.
Regarding employment and labor law, our firm created the Workplace Policy Institute with a mission of providing expert testimony on workplace issues and policies for lawmakers and regulators. Inevitably, the necessary changes in the job market will attract proposed legislation.
It is critical that good information is available to avoid unnecessary legislation designed to protect jobs which have lost their economic value. In a global economy, such special interest legislation will not stop the march of technology; it will merely cause the advancing technology to seek other venues.
Regarding legislation to limit product liability, as explained above, such concerns are probably premature. A malfunctioning self-driving car could cause terrible accidents. It could also cause hundreds of millions of dollars in damages by all of a sudden going out of control and hitting school busses and other populated areas. But this is also true of litigation against auto manufacturers for stuck accelerators or defective brakes.
The early evidence is that self-driving cars are dramatically safer than human-operated vehicles such that regulators are urging their faster development. 1.5 million people are killed in auto accidents worldwide, with approximately 32,000 of those lives lost in this country. As self-driving cars appear on our roads, this number should decline.
This could occur to such an extent that human drivers would need higher-priced special insurance due to the increased risks.
Robotics Business Review recently published some articles about the challenges facing robotics companies when it comes to obtaining affordable insurance:
Insurance allows you to spread the risk across a much wider group. If I?m a robot manufacturer and my product has a serious defect and goes out of control, the liability could be enough to destroy the company. This will be true for robotics just as it is currently true of multiple other product manufacturers.
If liability is materially distorted by legal cases designed to scare juries, tort reform will eventually provide some limitations. Meanwhile, the insurance industry has created products to cover almost every imaginable type of risk.
The insurance industry is data driven and undoubtedly uses some of the most sophisticated software. As robotics provides greater amounts of usable and reliable data, risks will be better quantified, making the pricing of insurance more real.
We are only at the beginning of starting to understand how insurance will apply to the new field of human-friendly robots. We will be following developments and hopefully helping to keep speculation from overwriting facts.
In ?Ten Areas? (see download above) you claim that the exoskeleton industry may be dramatically effected by existing law, including in relation to worker’s compensation.
RBR: Are you familiar with Ekso Bionics?
GM: I looked at their magic first-hand [Ekso Bionics]and I could immediately see that exoskeletons had profound implications for many areas of health and safety law, as well as employment law generally.
A wearable robot can transform the life of its user. It can empower a stroke victim who can no longer walk to run. It can protect a worker on a construction project from injury while giving him or her ten times their normal strength.
The impact on worker compensation rates could become so significant that insurance discounts would be available to employers using exoskeletons for physically demanding work.
I can see this technology changing the definition of a safe workplace for commercial construction. Preventing back injuries and dramatically improving worker safety will attract the attention of OSHA.
As experience with exoskeletons grows, I can see OSHA at some point requiring wearable robots as a safety device, especially for moving or lifting heavy objects. Even for holding and using smaller tools over long periods of time, exoskeletons could become preferred equipment and as common as safety shoes.
So that it would be compulsory for employers to provide workers with exoskeletons in certain industries?
OSHA already has literally thousands of requirements in the workplace for safety equipment. safety processes, gates and barriers, which are all required for the purpose of making a safer workplace. The exoskeleton could dramatically improve human safety while increasing production.
The age of empowering an average worker with the strength of a forklift has arrived. It is classic example of machine and man merging. The use and handling of forklifts in the workplace is also one of OSHA?s most regulated activities.
The employment law implications extend well beyond traditional health and safety concerns. Exoskeleton technology could result in dramatically greater opportunities for women in construction. Certain job requirements that are challenging for most women because of the need for greater upper body strength could become completely gender neutral with this technology.
Perhaps one of the most important and currently least considered legal applications of exoskeletons is their potential role as a reasonable accommodation for a person suffering from a disability. Under the Americans with Disabilities Act (ADA), employers cannot discriminate on the basis of a disability if the employee or applicant can perform the essential elements of the job with or without reasonable accommodations.
If the ability to walk or lift are essential elements of a job, a person who cannot walk can be accommodated with an exoskeleton. Such an accommodation cannot create an undue burden on the employer, which could currently exist because of the substantial cost.
However, as exoskeletons gain in their use and popularity, costs will come down and exoskeletons could open the door of the workplace to tens of thousands of currently disabled workers.
RBR: This runs counter to the narrative that robotics will displace human workers while creating new jobs.
If your scenario turns out to be true, robotics will enable a huge number of people to enter the workplace not to take new jobs, but to fill existing positions.
GM: Yes, this is part of the promise of technology and a very positive role for the application of workplace law. Soon every robotics company will be in need of having its products reviewed against the requirements of workplace laws.
On the traditional side, such an audit would examine, for example, whether a company complied with data privacy laws when information was collected and transmitted by a robot.
However, such an audit would also reveal where the robot may fulfill a workplace law requirement such as meeting a mandate for a safe workplace or becoming a reasonable accommodation for a disabled person making employment possible.
We live in challenging times, yet the promise of the future has never been greater, even from the perspective of a lawyer!