May 03, 2013      

Sophie twitches her eyebrows in approval after hearing your response to her latest question about why you left your previous employer. She fires away another query and follows up on your answer.

This is a job interview you could be having today, only Sophie isn’t a human being. She is a robot and has been designed to measure your emotional response during interviews by monitoring eye movement and facial expressions.

Sophie is also experienced. She has already conducted trial interviews for sales jobs, asking candidates nearly 100 questions about selling.

Sophie, while well-intentioned, presents a host of employment and labor law challenges. And she doesn’t stand alone.

She is one example of the exponential growth of cloud computing, sensor technologies and data analytics that has caused a corresponding growth in the development, deployment and use of robotics in manufacturing, services, information processing, accounting, medicine, law and eventually in all sectors of the global economy.

So rapidly is this expansion occurring that it has been predicted that by 2025 half of the jobs in the United States will be performed by robots.1

Regardless of whether this forecast is fully realized in just 12 years, robotics technology is destined to become as ubiquitous as computer technology is today.2

Multiple examples of this transformation are occurring every month. Foxconn, the largest electronics assembly company in the world, has ordered one million robots for delivery over three years. While the robotics industry struggles to meet this increasing demand, China seeks to shift its economy from one based on low-cost labor, to one supported by advanced technology.

Today, a $22,000 robot is commercially available to be stationed in any type of assembly plant to perform tasks formerly done by humans as a co-worker. This practical illustration of the robotics revolution was popularized on a recent 60 Minutes report on the unprecedented rise of robots in the workplace.

The employment and labor law compliance challenge

The advancement of robotics and artificial intelligence (AI) systems is exponential and inevitable. Equally certain is the challenge of harmonizing advancing technologies with aging employment and labor laws designed for workforces of the past.

Courts and administrative agencies struggle to reinterpret workplace laws in light of new technologies and even these efforts lag several years behind the accelerating development and deployment curve.

Accordingly, both the developers of advanced robotics and the users of this essential technology need to anticipate and avoid legal landmines that threaten to explode as work and the workplace change.

Sophie’s arrival as part of the recruiting process provides a rich example of inevitable technology and the need to incorporate into it anticipated legal compliance.

Under U.S. federal and state laws, there are interview questions that are illegal or improper. These range from questions about religious beliefs, sexual orientation and national origin to more subtle queries regarding day care arrangements and pregnancy.

Sophie needs to be programmed with legally acceptable questions consistent with country specific, state and local requirements. In this regard, Sophie is superior to human interviewers because her programming rules out the potential for asking a prohibited question in a pre-hire interview.

Asking proper questions is only one of Sophie’s abilities. An advanced feature is measuring emotional intelligence; however, this demands an extremely careful review of workplace law. Measuring eye movements and facial gestures needs to be vetted for unintended consequences such as adversely impacting minorities or other protected categories. Does this discriminate against individuals with certain disabilities?

If Sophie or her successors can also measure heart rates and other bodily functions, is this prohibited health information under medical privacy laws, the Americans with Disabilities Act (ADA), or Genetic Information Nondiscrimination Act of 2008 (GINA)?

Advanced robotics and AI will either stumble into the workplace being buffeted by employment and labor laws or march in supported by a legally engineered compliance program.

Sampling of workplace law compliance questions

The key to building a solid compliance program is to identify the potential legal issues even if the underlying law is uncertain or developing. Once the compliance issue is identified, necessary resources can be directed at finding the best answer. The following are examples of the types of questions that should be asked.

  • Workplace privacy: Is confidential information being electronically stored with proper privacy protections? If confidential personnel information is transferred to the cloud for use by robots and as part of an AI program, does it cross national boundaries consistent with legal requirements such as the European Data Directive or the new Mexican Data Privacy statute?
  • Health and safety: Is there compliance with OSHA regulations on workplace robotics? Are there additional state law health and safety requirements? Are there other federal or state agencies with health and safety jurisdiction, such as the FDA, the FAA, or the National Highway Traffic Safety Administration (NHTSA)?
  • Anti-discrimination protections: Do advanced robotic systems require training or programming skills disproportionately held by younger workers? Were older workers given training opportunities but declined to participate? Can a robot become a legally required reasonable accommodation for a disabled worker? Are there unintended disparate impacts on legally protected categories of employees from the use of robots (for example, a voice-activated robot that cannot recognize commands with strong accents)?
  • Wage and hour requirements: What wage and hour laws apply to employees who remotely operate robots across state or national boundaries? If a robot with advanced AI uses the Internet to identify and select a programmer for a specific assignment, can it be assumed that the programmer is an independent contractor?
  • Unionization and collective bargaining requirements: If robots are acquired to do work previously performed by unionized employees, is there a requirement to bargain with the union in advance about the decision? Can an employer facing a union-organizing effort truthfully inform employees that unionization would likely lead to the increased use of robots?
  • Human displacement: If robots displace employees, what advanced notice requirements exist under federal or state law? Are there mandatory severance obligations? Are federal or state retraining funds or programs available to employees displaced by robots? How likely is future legislation?

The above is only a partial list of questions and concerns that will confront employers as they increasingly use robotics. The same considerations will be even more important to the robotics industry, as they will often need to offer answers as part of the legal engineering built into their products and systems.

[1]See Nicholson, Christie. SmartPlanet. August 24, 2011.

[2]See A Roadmap for U.S. Robotics, From Internet to Robotics. Organized by Georgia Institute of Technology, Carnegie Mellon University, Robotics Technology Consortium, University of Pennsylvania, University of Southern California, Stanford University, University of California Berkeley, University of Washington, and Massachusetts Institute of Technology. 2013 Edition. March 20, 2013. p. 2.

Anticipatory action by employers is key

At least as important as addressing legal compliance with existing workplace regulations and legislation is the need to actively participate in the debate over anticipated future regulations and laws.

The speed of change and the demographics of the current workforce make it inevitable that technological unemployment will be experienced. Ironically, this unemployment will occur at the same time as hundreds of thousands of skilled positions go unfilled.

Employers need to mobilize their trade associations and other representative organizations to become a strong voice before legislatures and regulators on addressing the unemployment challenge while facilitating technological change.

As more employers turn to robotized technology to achieve arguably greater employee productivity at reduced costs, success will be measured by how well they facilitate the transition.

AI and robotics are ultimately good for business as they produce abundance and the technology is unstoppable, but smart planning is needed to achieve compliance with legal requirements and to avoid legal landmines.

At the same time, legislators and administrators need to recognize that the technological transformation of the workplace is global and overly protective legislation will only result in a geographic relocation of investment and economic growth.

Practical recommendations for employers

1. Involve human resources (HR) and legal in robotics planning and development: The decision to use robotics requires the full involvement of the organization and cannot be limited to any one department. It is not just an efficiency or ROI question to be resolved between the Chief Technology Officer and the CEO. It involves and impacts the entire workforce as well as HR policies and programs. Legal compliance issues only become roadblocks when they are unanticipated.

2. Increase the use of contingent and virtual workers: Changing skill requirements, new technologies and economic change have resulted in an increased use of more contingent workers such as consultants, project employees and/or contractors. Increasingly, employees are welcoming shorter term flexible assignments to match life style choices. Consider expanding your contingent and virtual workforce in anticipation of technological change. If and when robots displace human workers, reducing the contingent workforce is more accepted and legally less difficult. The arrival of the contingent workforce provides a win-win solution for needed current skills and future uncertainty.

3. Designate an HR professional or corporate counsel to become the organization’s expert on robots and the law: The legal impact of robotics on the workplace is a developing discipline. Designating an HR professional or corporate counsel to become the in-house expert and resource is a good division of labor and an investment in your organization’s future. Our law firm has created a global Robotics Practice Group providing employment and labor law mentoring, advice and information to the robotics industry, as well as employers deploying this technology in the workplace. The Robotics Business Review has an entire section devoted to Robots and the Law.

Robotics in 2013 and beyond

Brilliant machines such as Sophie are arriving and the workplace is being transformed. Employers need to plan now for the arrival of robotic systems that might seem distant but becomes more real every day. A critical and heretofore often overlooked component of that planning is employment and labor law compliance and anticipation of future regulations and workplace laws.

About the Authors:

Garry Mathiason, Esq., is chairman of the board at Littler Mendelson, the largest global law firm exclusively devoted to labor and employment law. He is widely recognized as a futurist and one of the leading authorities on employment law trends in the United States. He chairs Littler’s Robotics Practice Group, providing legal advice and representation to the robotics industry, as well as employers deploying this technology in the workplace.

Garry has been named one of the top 100 most influential attorneys in the nation by the National Law Journal and has received the highest rankings from Chambers USA, Who’s Who Legal, and The Best Lawyers in America.

See: Complete biography

Bonne Chance is an Executive Assistant at Littler Mendelson. She has supported Garry Mathiason and his practice for over six years, assisting his research and development of leading employment and labor law trends. She completed her BA at the University of California, Berkeley and her graduate work at the University of Santa Monica.

Email contact: Garry Mathiason, Esq.; Bonne Chance

Authors’ note:

Starting late this year and throughout 2014, Littler’s Workplace Policy Institute will bring together some of the nation’s leading legal, business, academic, and political leaders in an effort to identify needed changes in workplace laws to better facilitate the introduction of new technologies.

Indeed, the creative application of current laws with needed 21st Century modifications promises to help build a bridge between today’s workforce and the robotically enhanced workforce of the future.

This initial article is part of a series that will focus on selective legal challenges and recommended solutions associated with advanced robotics and AI in the workplace.