Now more than ever, federal contractors are at the intersection of innovation and regulation, especially in the area of artificial intelligence (AI). AI is now being incorporated into a wide range of business systems, including systems that may inform hiring decisions for contractors. To that end, the Office of Federal Contract Compliance Programs (OFCCP) has issued new guidance titled “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors” (the “AI Guide”). OFCCP published the AI Guide based on President Biden's Executive Order 14110 (on the “Development and Use of Safe, Secure, and Trustworthy Artificial Intelligence''), which is reported in this article. The AI Guide provides answers to frequently asked questions about the use of AI in an Equal Employment Opportunity (EEO) context. The AI Guide also provides “Promising Practices” that highlight some important considerations for federal contractors. The AI Guide focuses on federal contractors' obligations and associated risks when utilizing AI to support employment-related decisions, and how to comply with his EEO requirements while leveraging the efficiencies of AI. We also provide recommendations to ensure that.
risks and obligations
OFCCP confirms in its AI Guide that compliance evaluations and complaint investigations include an examination of a contractor's use of AI in employment decisions, including but not limited to hiring, promotion, termination, and compensation. . This guidance includes the use of the definition of AI provided under the National Artificial Intelligence Initiative, 15 USC § 9401(3), as well as examples of automated systems provided in the White House Blueprint for AI Bill of Rights.
The Q&A section provides examples of how the use of AI in employment decisions can implicate federal contractors' EEO obligations. For example, a contractor's obligation to provide reasonable accommodations to employees or applicants with disabilities also applies to the contractor's use of automated systems. Additionally, if selection procedures involving automated systems adversely impact members of a racial, gender, or ethnic group, federal contractors must verify the system in accordance with Uniform Guidelines for Employee Selection Procedures, including clarifying the needs of the business. need to do it. Motivating the use of AI systems and the job relevance of selection procedures, conducting independent assessments of bias, and exploring alternative selection procedures that are potentially less discriminatory. In particular, contractors must be able to provide information and records regarding the impact and effectiveness of their selection procedures, and “the negative effects of discriminatory screening conducted by third parties such as staffing agencies, HR software providers, and staffing agencies.” “Vendors cannot escape liability.” ” Contractors who use AI to make hiring decisions must also ensure compliance with all recordkeeping requirements. For example, contractors use AI to ensure compliance with all recordkeeping requirements, including the substantive search criteria used. Records of resume searches performed must be maintained.
Federal contractors’ use of AI in employment decisions creates complex compliance obligations (and associated risks). OFCCP's AI Guide emphasizes the importance of AI systems being transparent, fair, and free of bias that could lead to adverse employment actions based on race, gender, or ethnicity, and that contractors It highlights the need to maintain strict oversight of AI applications in practice. .
OFCCP’s recommended AI implementation practices
If a contractor is using or intends to use an AI system to make employment decisions, the contractor's employees involved understand the design, development, intended use, and effects of the AI system, and have appropriate information regarding the system. There is a basic expectation that you are being trained. There is also a basic expectation that AI obtained by vendors will be properly vetted. To help contractors navigate the compliance environment, OFCCP recommends several best practices for AI implementation. This includes having a standard process for using AI for all candidates, how the system contributes to hiring decisions, and how data is collected. This includes clearly communicating to applicants and employees about the use of AI. Used in AI systems. For example, a contractor must provide instructions on how an applicant or employee can request the evaluation, correction, or deletion of data in her AI system or how to request a reasonable accommodation. In addition, contractors should regularly monitor their systems to ensure they do not cause extraneous or negative impacts, and to ensure that there is meaningful human oversight of decisions supported by AI. need to do it. These practices, and others featured in OFCCP's AI Guide, are intended to reduce risk and promote a fair employment environment.
conclusion
Integrating AI into employment practices presents a unique set of challenges and opportunities for government contractors. OFCCP's AI Guide provides a roadmap for how OFCCP views AI from a compliance assessment perspective. As the AI landscape evolves, maintaining a proactive approach to compliance allows contractors to effectively leverage the benefits of AI while maintaining their commitment to equal opportunity and affirmative action. Become. For additional questions regarding the use of AI in employment decisions and the obligations of federal contractors when using AI, please contact Crowell & Moring.
Note: Our attorneys leveraged AI in the creation of this client alert, including using a transcript summary created by Generative AI. As we explore the potential of generative AI in the legal field, it is our intention to be transparent with our readers and use public resources to showcase the results we have achieved using generative AI. It is also a practice. Crowell's AI group is comprised of attorneys and experts from across our global offices, including our international public policy agency, Crowell & Moring International (CMI), and brings decades of field-specific experience. there is. We intend to lead by example in the responsible use of AI, as it involves both risks and benefits. If you have any questions about using generative AI in the legal field or using Crowell's AI, please contact us. innovation@crowell.com.
