The Essential Worker: Protecting Workers from AI Encroachment

TJ Cleary, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

           

I. Introduction

            The Covid-19 Pandemic introduced the world to many changes. One of those changes was the labeling of workers as essential and non-essential.[1] An Essential Worker would be permitted to go to their job site, given that they followed mask mandates and other safety protocols.[2] Non-essential workers were to stay at home and do what they could there. Another effect from the Covid-19 Pandemic was an increase in the use of artificial intelligence (“AI”) by businesses.[3] An estimated 42% of jobs lost during the pandemic are lost forever due to AI replacement.[4] Some of those jobs being toll collectors, cashiers, and food service workers.[5] The Fair Labor Standards Act (“FLSA”) was created by Congress in 1938 to protect workers’ rights and prevent employer abuse.[6] This article will discuss how the language employed during the Covid-19 Pandemic labeling workers as “essential” can be used to provide those same workers protection from AI encroachment, and how that language should be added into the Fair Labor Standards Act to ensure protection.

II. Background

A. Artificial Intelligence in Businesses

          Artificial intelligence is defined in the notes of 10 USC §2358 as “Any artificial system that performs tasks under varying and unpredictable circumstances without significant human oversight.”[7] Major businesses have been acquiring artificial intelligence startups since the early 2010s.[8] Self-checkout systems employed in grocery stores across the country are designed to detect strange transaction behavior and flag suspicious activity.[9] Additionally, the trucking industry has begun to create technology for self-driving trucks which rely on a combination of artificial intelligence and sensors to maintain accurate driving.[10] 

            PEW Research has found that in 2022 19% of all workers in the United States have been exposed to AI in some form or another.[11] Additionally 20% of workers in agriculture and 21% of workers in transportation believe that AI will hurt more than help them.[12] Some healthcare professionals also believe that AI will start playing a larger role in healthcare.[13] AI is likely going to begin taking on diagnostic and administrative roles, further eliminating the need for workers in those positions.[14] AI is beginning to play a larger role in many key American industries. This will only grow more prevalent as technology becomes more advanced.

B. The Fair Labor Standards Act

            The FLSA established “minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.”[15] The introduction of the FLSA brought much needed regulation in American industry and created a federal minimum wage that has become a large part of American culture.[16]

            Prior to the FLSA, the National Industry Revival Act (“NRA”) was passed in 1933.[17] The NRA allowed employers unprecedent abilities to create new employment agreements, many of which established a 35-40 hour work week and minimum wages.[18] The NRA was dismantled by the Supreme Court in the case Schecter Corp v. United States in 1935.[19] Schecter involved a slaughterhouse company who violated the Live Poultry Code (“LPC”).[20] The LPC was created under Section 3 of the NRA and set standards for hours, and wages in the poultry industry.[21] The Court held that the NRA was too broad and an unconstitutional delegation of legislative power.[22] The Court then directed Congress to create legislation that gave strict standards on how to delegate their power.[23]

            After the failure of the NRA the Roosevelt administration crafted the FLSA.[24] The FLSA was created in compromise and as a result applied only to about one fifth of the labor force and set the hourly wage at $0.25 an hour with a 44 hour workweek.[25] Since its creation, the FLSA has been expanded and revised to create a $7.25 federal minimum wage and a 40 hour work week with overtime benefits.[26] The FLSA plays a major part in labor regulations and provides a backbone of protection for workers throughout the country. Without the FLSA, employees would have no legal recourse against an employer if they were being underpaid or overworked.[27] The FLSA authorizes the Wage and Hour Division (WHD) to conduct investigations into employer misconduct.[28] It also allows the Department of Labor or an employee to receive either liquidated damages or back wages from an employer when a violation has occurred.[29] These mechanisms provide legal protection for workers from employer misconduct. The FLSA is a tool that employees can use to protect their livelihood and well-being.  

C. Essential Worker Language

            The Covid-19 Pandemic created the Essential Worker.[30] Essential Workers are defined on a state-by-state basis.[31] However, the Federal Government has provided a guideline for Essential Workers that states can choose to adopt.[32] According to the Federal Government, Essential Workers are defined as “a range of operations and services that are typically essential to continue critical infrastructure operations.”[33] The term critical infrastructure is purposefully broad to encompass many different industries.[34] 30 states have adopted their own standards and 21 states have chosen to follow federal guidelines.[35] The language itself was used to protect Essential Workers and create a class of workers that were exempt from the stay home orders imposed during the lockdowns.[36] Essential Workers were allowed to physically go to work given they follow various other mandates such as mask mandates and social distancing.[37] Overall, the creation of the Essential Worker label has brought about a distinction in how the law affects different types of workers.

III. Discussion

            While AI technology has the potential to increase productivity and bring great innovation, the jobs of Essential Workers should be protected. To do so the Federal Government should use the Essential Worker language in conjunction with the FLSA.

A. Why AI?

            It is no secret that American industries are becoming more automated.[38] Throughout history, jobs have been lost as technological developments render whole industries obsolete. AI presents a unique problem in the labor field. Unlike the steam engine or electricity, AI can perform tasks that are not purely mechanical.[39] AI can drive cars, handle customers, and diagnose medical problems.[40] It is far more advanced than previous groundbreaking inventions. Not only does AI have the potential to render industries irrelevant, but it can also wipe out entire labor pools. Although it is not fully developed, AI has the potential to usurp human workers as a low-cost alternative for employers. Every business is seeking to cut costs and turn a profit. Investing in AI is the perfect way to do so.[41]

            AI will be replacing real people who have families that depend on them. As discussed earlier, the Covid-19 Pandemic saw a drastic loss of jobs.[42] Businesses found reliance on automation and AI to not only be cheaper but easier to manage.[43] Workers have rights, and the government has a responsibility to uphold those rights.[44]

B. The Essential Worker Distinction

            The FLSA has established a strong legal foundation for workers, and I believe that using Essential Worker language could grant even greater protections. Those protections would be put in place to ensure that American families are not harmed through a large loss of jobs due to AI encroachment. There are people behind the Essential Worker label and those people have families. 55 million American’s fall under the Essential Worker label.[45] That is a large percentage of Americans who would be protected from losing their jobs.

            The use of Essential Worker language in conjunction with the FLSA provides a legal remedy to a potential nationwide issue. Essential Workers have been established as a class of their own. Using that language and the precedent behind it, Congress could create either a separate act or an addition to the FLSA. The addition would be used to protect Essential Workers from mass layoffs due to a breakthrough in AI technology. Doing so is essential in protecting the rights of workers in our country, ensuring that those who rely on their jobs are not thrown into financial troubles because their employer found a cheaper option.

IV. Conclusion

            The law must consider workers. In our past laws have been created and undone granting workers’ rights and taking them away. The law needs to reflect that in our technology driven age there are still people who are essential to the infrastructure of our country and those people deserve protection. Throughout history there have been innovations that have changed the landscape of industry and disrupted the lives of millions. AI may be the way of the future, but it does not need to come at the expense of our citizens’ livelihoods.

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[1] Covid-19: Essential Workers in the States, National Conference of State Legislatures, (last updated Jan. 11, 2021), https://www.ncsl.org/labor-and-employment/covid-19-essential-workers-in-the-states#:~:text=According%20to%20the%20U.S.%20Department,energy%20to%20defense%20to%20agriculture.

[2] Id.

[3] Alana Semuels, Millions of Americans Have Lost Jobs in the Pandemic—And Robots and AI Are Replacing Them Faster Than Ever, Time, (Aug. 6, 2020), https://time.com/5876604/machines-jobs-coronavirus/.

[4] Id.

[5] Id.

[6] Jonathan Grossman, Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage, U.S. Department of Labor, (last visited Oct. 7, 2023), https://www.dol.gov/general/aboutdol/history/flsa1938#.

[7] 10 USC §2358.

[8] The Race for AI: Here are the Tech Giants Rushing to Snap Up Artificial Intelligence Startups, CBInsights, (Sep. 17, 2019), https://www.cbinsights.com/research/top-acquirers-ai-startups-ma-timeline/.

[9] Krishna Motukuri, Why AI and Checkout-Free Technology will Grow in 2023, Forbes, (Feb. 8, 2023), https://www.forbes.com/sites/forbestechcouncil/2023/02/08/why-ai-and-checkout-free-technology-will-grow-in-2023/?sh=57094f7d7067.

[10] Autonomous Trucking, Library of Congress, (last visited Oct. 8, 2023), https://guides.loc.gov/trucking-industry/autonomous-trucking.

[11] Rakesh Kochhar, Which US Workers are More Exposed to AI on Their Jobs, PEW Research, (Jul. 26, 2023), https://www.pewresearch.org/social-trends/2023/07/26/which-u-s-workers-are-more-exposed-to-ai-on-their-jobs/.

[12] Id.

[13] Thomas Davenport, The Potential for Artificial Intelligence in Healthcare, National Library of Medicine, (Jun. 6, 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6616181/.

[14] Id.

[15] Handy Reference Guide to the Fair Labor Standards Act, U.S. Department of Labor, (last visited Oct. 8, 2023), https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20establishes%20minimum%20wage%2C,%2C%20State%2C%20and%20local%20governments.

[16] Grossman, supra note 5.

[17] Id.

[18] Id.

[19] Id.

[20] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837 (1935).

[21] Id. at 523.

[22] Id. at 542.

[23] Id.

[24] Id.

[25] Id.

[26] Wages and Fair Labor Standards Act, U.S. Department of Labor, (last visited Oct. 8, 2023), https://www.dol.gov/agencies/whd/flsa.

[27] US Department of Labor, supra note 15.

[28] Id.

[29] Id.

[30] National Conference of State Legislators, supra note 1.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] David Beede, Three Results from Recent Research on Advanced Technology Use and Automation, U.S. Census Bureau, (last revised Sep. 11, 2023), https://www.census.gov/newsroom/blogs/research-matters/2023/09/advanced-technology-use-and-automation-results.html.

[39] Davenport, supra note 13.

[40] Library of Congress supra note 9; Motukuri, supra note 8; Davenport, supra note 13.

[41] Semuels, supra note 3.

[42] Id.

[43]  Id.

[44] US Department of Labor, supra note 15.

[45] Celine McNicholas, Who are Essential Workers? A Comprehensive Look at Their Wages, Demographics, and Unionization Rates, Economic Policy Institute, (May 19, 2020), https://www.epi.org/blog/who-are-essential-workers-a-comprehensive-look-at-their-wages-demographics-and-unionization-rates/.