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February 2014

The Transformation of the Workplace ThroughRobotics, Artificial Intelligence, and AutomationEmployment and Labor Law Issues, Solutions, and the Legislative and Regulatory Response

Garry Mathiason

John Cerilli

Van Allyn Goodwin

Phil Gordon

Paul Kennedy

Theodora Lee

Michael Lotito

Kerry Notestine

Natalie PierceEugene Ryu

Ilyse Schuman

Paul Weiner

William Hays Weissman

Robert Wolff

Jillian Ballard

Greg Brown

Danielle Fuschetti

Tessa Gelbman

Joon HwangCatherine Losey

Brian Morris

Miranda Mossavar

Nima Rahimi

Sarah Ross

Jeff Seidle

Lauren Woon

Aida Wondwessen

Ethan G. Zelizer

AUTHORS
http://www.littler.com/PressPublications/Pages/LittlerReport.aspx


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IMPORTANT NOTICE

This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers

involved in ongoing disputes and litigation will find the information useful in understanding the issues raised and their legal context.

The Littler Report is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous

factual issues that inevitably arise in any employment-related dispute.

Copyright 2014 Littler Mendelson, P.C.

All material contained within this publication is protected by copyright law and may not

be reproduced without the express written consent of Littler Mendelson.


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COPYRIGHT 2014 LITTLER MENDELSON, P.C.

ABOUT OUR FIRMLiler Mendelson is he worlds larges labor and employmen law firm devoed exclusively o represening managemen. Wih

over 1,000 aorneys and more han 60 offices hroughou he U.S. and globally, Liler has exensive knowledge and resources o

address he workplace law needs o boh U.S.-based and muli-naional cliens. Liler lawyers pracice and have experience in more

han 36 areas o employmen and labor law. Te firm is consanly evolving and growing o mee and respond o he changes ha

impac he global workplace.

ABOUT OUR ROBOTICS, AI AND AUTOMATION PRACTICE GROUPoboics is he ases growing indusry in he world, poised o become he largein he nex decade. Te increasing use o

arificial inelligence (AI) and relaed echnologies in he workplace are dramaically changing he employmen landscape. Te

nearly 100 aorneys in Lilers oboics, AI and Auomaion Pracice Group recognize his impending ransormaion, and are

available o assis employers wih he labor and employmen implicaions ha will ollow. As he worlds larges law firm ocusing

solely on legal and regulaory issues affecing employers, Liler is in a unique posiion o help businesses conron he new

challenges ha roboics and advanced echnologies bring. Our Pracice Group provides high-qualiy employmen and labor law

represenaion and compliance assisance o employers in he roboics indusry and employers inegraing roboics and AI sysems

ino heir workplaces in he U.S. and worldwide. Pracice Group aorneys can provide employers wih a cusomized review oheir roboics producs and sofware o assess wheher heir use conflics wih workplace law, and recommend ways in which new

echnologies could be used o achieve workplace compliance. Trough Lilers Workplace Policy Insiue, our pracice offers

model policies, exper esimony, and pracical recommendaions o legislaures, parliamens and regulaory agencies regarding he

adopion and implemenaion o workplace roboics and relaed advanced sysems. o learn more abou our Pracice Group, please

conac Pracice Co-Chairs Garry Mahiason a [email protected], or Adam Forman a [email protected].

ABOUT LITTLERS WORKPLACE POLICY INSTITUTELilers Workplace Policy Insiue (WPI) is he go-o resource or he employer communiy o learn abou and respond

o legislaive, regulaory and judicial developmens ha impac heir employees and business sraegies. Te WPI harnesses he

deep subjec-maer knowledge o Liler o ensure ha policymakers in Washingon and around he counry hear he voice o

employers. Te WPI is engaged wih Congress, he execuive branch, and he cours on he mos criical employmen, labor andbenefis issues o he day, including he requiremens o he Affordable Care Ac (ACA), Occupaional Saey and Healh (OSH)

Ac, Fair Labor Sandards Ac (FLSA), Naional Labor elaions Ac, ile VII, and heir ever-changing implemening regulaions.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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ii LILE MENDELSON, P.C. EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE

EXPLANATION AND SCOPE OF THIS PRELIMINARY LITTLER REPORT 1

I. INTRODUCTION 3

II. WORKPLACE LAW CHALLENGES AND SOLUTIONS 9

A. Human Displacement 9

B. Union and Non-Union Labor Relations 11

C. Anti-Discrimination 15

D. Wage & Hour 19

E. Health & Safety 21

F. Workers Compensation 23

G. Tort Liability Issues 24

H. Privacy 24

I. Trade Secrets 29

J. eDiscovery 32

K. Healthcare 35

L. Legislative & Regulatory Considerations 37III. CONCLUSION AND PRACTICAL RECOMMENDATIONS 39

ENDNOTES 40

APPENDIX: THE EMPLOYMENT TAX IMPLICATIONS OF THE

ROBOTICS REVOLUTION 49

SECTION / TOPIC PAGE

Table of Contents


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COPYRIGHT 2014 LITTLER MENDELSON, P.C.

THE TRANSFORMATION OF THE WORKPLACE THROUGH ROBOTICS, ARTIFICIALINTELLIGENCE, AND AUTOMATION

EMPLOYMENT AND LABOR LAW ISSUES, SOLUTIONS, AND THE LEGISLATIVE AND REGULATORY RESPONSE

ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 201

EXPLANATION AND SCOPE OF THIS PRELIMINARY LITTLER REPORT

Tis Preliminary epor is being released as par o Lilers Workplace Policy Insiue (WPI) February 12, 2014 oundable on Te

Fuure o he Workorce, How he oboics evoluion Will Shape he Employmen and Labor Law Landscape. Te epor has been iled

Te ransormaion o he Workplace Tough oboics, Arificial Inelligence (AI), and Auomaion o reflec he convergence o muliple

echnologies as hey joinly impac he workorce and redefine he workplace. Te purpose o his Preliminary epor is o begin ideni ying

he resuling Employmen & Labor Law Issues, crafing pracical Soluions, and anicipaing and helping o direc he egulaory &

Legislaive esponse. Te ollowing are imporan explanaions, definiions, and disclaimers o guide he reader o his Preliminary epor

Soliciting Your Feedback: Tis firs-o-is-kind Preliminary epor (epor) orms he basis or a more comprehensive repor obe issued in conjuncion wih Lilers Execuive Employer Program on May 7-9, 2014. Liler is commied o ideniying and crafing

soluions o he vial workplace legal issues ha are inheren in he explosive growh o roboics, AI, and 21s cenury auomaion.

Tis epor idenifies some o he hidden pialls and possible soluions while soliciing eedback rom indusry and legal expers, as

well as H proessionals. Based on ha eedback and a deeper probe ino he roboics and AI indusries, he May repor will revise

and expand upon he conens o his epor.

Te Challenge o Defining ransormative echnologies in the Workplace: Increasingly specific definiions have emerged o

differeniae areas o roboics, sofware and AI, as well as hisorical, conemporary, and uure auomaion. For example, an indusria

robo has been defined as an auomaically conrolled, reprogrammable mulipurpose manipulaor programmable in hree or more

axes which may be eiher fixed in place or mobile or use in indusrial auomaion applicaions. 1

While undersanding hese indusry-specific definiions is imporan, many oher definiions are more general in heir applicaion. Forexample, a more elemenal definiion o robo is simply: a machine ha can do he work o a person and ha works auomaically

or is conrolled by a compuer.2Saed differenly, a robo is: any auomaically operaed machine ha replaces human effor, hough

i may no look much like a human being or uncion in a humanlike manner.3

Many o he journal aricles and popular media sories reerenced in his epor reely cross indusry boundaries, and ofen apply he

erm robo and roboics o cover a coninuum o ransormaive echnologies. In his epor, our analysis covers roboic sysems

as defined below, as well as AI and 21s cenury auomaion. In uure epors, as he legal sysem increasingly recognizes differences

beween indusries and echnologies, we will mirror hose differeniaions in our pracical soluions and recommendaions.


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The Transformation of the Workplace Through Robotics, Artificial Intelligence, and Automation

2 LILE MENDELSON, P.C. EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE

A robotic system is a compuer sysem ha, using inelligen, neworked devices, he Inerne, big daa, AI algorihms, and oher

advanced compuing echnology, is capable o: auomaically and coninually sensingwha is going on in a changing physical or

oher environmen; thinkingby analyzing daa i collecs rom he environmen i is monioring (e.g. deecing occurrences, changes

and anomalies), ideniying rends, and reaching conclusions; and auonomously actingby carrying ou one or more physical (e.g

navigaing hrough an environmen, manipulaing an objec, ec.) or non-physical (e.g. alering human operaors, recommending

poenial responses, making decisions, iniiaing commands, ec.) uncions. Saed more simply, i is any compuer sysem capable

o sensing occurrences in a dynamic siuaion or environmen, capuring and analyzing he relevan daa, and subsequenly reaching

conclusions, providing recommendaions, making decisions, and oherwise aking acion, wheher o a physical or non-physical naure

In this Report, we include sofware robots or virtual agents. Tus, a robo could be a sofware program ha perorms a ask

previously done by humans, or a virual assisan, such as a elepresence robo ha perorms services remoely. eleroboics is he

area o roboics concerned wih he conrol o robos rom a disance, chiefly using wireless connecions, ehered connecions, or

he Inerne. I is a combinaion o wo major subfields, eleoperaion and elepresence.4

Artificial Intelligence (AI)is included in his epor. I is defined as he inelligence exhibied by machines or sofware, and he

branch o compuer science ha develops machines and sofware wih inelligence.5Compuer scienis John McCarhy, who is

credied wih coining he erm in 1955, defines i as he science and engineering o making inelligen machines. 6AI is included o

underscore ha he scope o his epor covers boh hardware and sofware ha do asks previously perormed by humans.

Automationis also included in his epor as he erm relaes o he 21s cenury. I is defined as he auomaic operaion or conro

o equipmen, a process, or a sysem.7While auomaed processes can be raced back cenuries, he erm auomaion did no come

ino popular use unil 1947, when General Moors esablished an auomaion deparmen. As used in his epor, auomaion reers

o an operaion or conrol sysem ha uses inelligence. oboics and AI are subses o auomaion. However, in many insances,

produc manuacures and sysem designers have avoided he erms roboics and AI in avor o some orm o he word auomaion.

For example, conemporary je aircrafs are capable o aking off, flying, and landing by hemselves wih auomaic pilos. Similarly

he erm vehicular auomaion encompasses he sel-driving car, robo car or auonomous vehicle.

Forecasting Compliance: oboic sysems, AI, and 21s cenury auomaion are developing a an exponenial pace, creaing

work environmens and condiions unimagined a hal cenury or more ago when mos workplace laws were enaced. Noneheless

designers, builders, and users o his echnology are expeced o comply wih all perinen employmen and labor laws long beore

cours have ruled or regulaory agencies have aced. Te main goaland major challengeo his epor is o orecas how heselaws will apply o he evolving workplace and wha consiues reasonable compliance. While we can offer no guaranees and his

epor canno subsiue or individualized advice o counsel, i offers a compliance roadmap or many o he issues ha lie ahead

Wih he regular updaing o his epor, we seek o offer increasingly insighul and useable observaions as o how roboics, AI, and

21s auomaionwhich will ineviably dominae he worlds economyimpac workplace law.

Creating Employment: Hisorically, he inusion o new echnologies ino he workplace has grealy increased produciviy and

human employmen. A he same ime, he jobs people perorm have radically changed. One hundred years ago, one in hree

Americans worked in agriculure; oday, less han 2% o he workorce produces a ood surplus resuling in expors. Wha is differen

now and over he nex decade is he speed o change, he challenge o displaced workers o rerain and quickly adjus o he new

economy, and he unprecedened demand or SEM-qualified job candidaes. In his epor, we acknowledge he ineviable worker

dislocaions and offer employers pracical soluions or easing he effecs o necessary layoffs while using echnology o address he

growing skills shorage. New echnologies increasingly are replacing humans in dangerous assignmens, aking over repeiive, lower

skilled asks, and filling needs o perorm unwaned work such as harvesing leuce and grapes. Higher-skilled, beer-paying jobs

are creaed, which in urn creae downsream service jobs (sponsoring addiional auomaion). While or he nex decade more jobs

will likely be creaed han los, he inense public debae abou ne job creaion may be misplaced. Te pracical realiy is ha we

are all par o a global economy and innovaion canno be sopped as resricive legislaion in one counry will merely ranser he

echnological advancemen o anoher. Nor will any naion be willing o give up he grea benefis o innovaion or humaniy. Te

mission o his Preliminary epor and is successors is o aciliae he ineviable arrival o hese ransormaive echnologies ino he

workplace, while maximizing compliance wih exising and uure employmen and labor laws.


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COPYRIGHT 2014 LITTLER MENDELSON, P.C. 3

The Transformation of the Workplace Through Robotics, Artificial Intelligence, and Automatio

I. INTRODUCTION

Te workorce is undergoing a radical ransormaion. While indusrial auomaion, compuer programming, and daa sorage have

been inegral o he modern workplace or decades, a number o acors in recen years have spurred he evoluion o modern roboics, AI

and 21s cenury auomaion. Ongoing advances in microcompuer, neworking, and sensor echnologies, combined wih a corresponding

decrease in coss,8is ueling a nex-generaion compuer revoluion highlighed by he exponenial rise o conneced, mobile devices. Such

devices (increasingly wihou he need or human inervenion) are able o sense, capure, and analyze inormaion abou he surroundingenvironmen and o communicae he relevan daa in real ime o human operaives and online daabases.

Ever-improving compuer sofware algorihms are able o aggregae and analyze he massive amouns o inormaion colleced by he

neworked devices, ideniy rends, predic oucomes, make recommendaions and decisions, and, o a growing exen, iniiae and ake

auonomous acion in siuaions where humans have delegaed he auhoriy o do so.

When hese advanced compuing sysems are combined wih complex physical machinery, cuing-edge roboic sysems are born

Increasingly inelligen and auonomous mechanical devices neworked o powerul servers will yield an array o roboic sysems and

applicaionsdesined o have an enormous impac on every aspec o our sociey.9Te impac o hese echnologies on he workplace is

significan and ar-reaching.

For example, new echnologies have enabled job candidaes o pos heir resumes on more han 50 leading websies and search or

desirable job posings across he web. In response, employers and proessional recruiers have increasingly used sofware algorihms duringhe hiring process.10

Many companies use applican racking sysems o review and screen resumes. For insance, Monser.comone o he worlds larges

job boardswill submi a resume o an employer only i i ges a green ligh rom is sofware 6sense.11One o he mos advanced sysem

eaures Arya, idenified as he firs recruiing robo.12Arya is virual and learns he search paerns used by he recruier i is assising. Arya

hen scans he web selecing candidaes and independenly arranging inerviews. All he workplace laws ha govern he way employers

consider applicans apply equally o his exising echnology ha makes candidae selecion decisions.

One o he common eaures o screening sofware is he reliance on cerain buzz words in making decisions. However, any paern

ha has a disparae effec on proeced caegories (race, age, sex, naional origin, ec.) would likely violae ani-discriminaion saues unless

hey could be jusified by business necessiy. Tis creaes risk or boh sofware companies and end users (paricularly given ha such claims

would be paricularly suscepible o class reamen). Programs using more sraighorward crieriasuch as work hisory and educaionmus also be careully reviewed or workplace law compliance. Te Equal Employmen Opporuniy Commission (EEOC) has or over a

decade been cognizan o resume-scanning sofware and he need or verificaions ha he sofware does no have such a disparae impac.1

For example, a program ha excludes resumes ha sugges a period o unemploymen may run aoul o exising EEOC guidance and sae

or local law prohibiing discriminaion agains he unemployed. Indeed, New York Ciy and Washingon, D.C. recenly prohibied such

discriminaion.14

Te nex generaion o roboic recruiers has already arrived wih NECs unveiling o Sophie and her colleagues who inerview

human job applicans. Tese cue, wo-ee all members o he H recruiing saffinended o be he ulimae objecive job candidae

evaluaorshave been deployed and field esed.15Sophie is programmed o no only ask and respond o quesions, bu also o measure

an inerviewees physiological responses. While overly objecive, a roboic inerviewer like Sophie mus be programmed consisen wih

employmen discriminaion laws o he jurisdicion. Behavioral analysis and oher daa acquired by robos could have a disparae impac on

proeced caegories. o he exen a robo measures an inerviewees physical responses o analyze ruhulness, he companies developingand uilizing he echnology mus consider and comply wih he myriad o sae laws regulaing he use o lie deecors.

Modern roboics and AI sysems are being deployed in a variey o indusries, including ood service, 16 medical,17airline,18energy,1

and ground ransporaion,20among ohers. For example, robos already fill more han 350 million prescripions each year a over a hird

o he medium and large hospial pharmacies in he U.S.21While many assembly line job asks have been mechanized or years,22rainable

robos are being developed o improve and sreamline he process.23Some robos are even augh how o hink like a human o improve

perormance and objec recogniion.24


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Human-like robos are being used o fill he growing need or elder care. According o one repor, he Japanese Economy, rade and

Indusry Minisry anicipaes he marke or elder care robos will be valued a more han 400 billion yen ($4.09 billion U.S. dollars) by

2035.25ecenly, a Japanese company has developed a caring robo o reduce he workload or nurses.26Anoher opion o assis wih elder

care in Japan is a ype o baery-operaed sui ha uncions as a roboic exoskeleon o help workers lif paiens. Tis exoskeleon can also

be worn by he paiens hemselves o increase mobiliy and muscle uncion. Cyberdyne, he company ha manuacures his apparaus, has

already delivered more han 330 such moorized suis cosing abou $1,780 a piece o care ceners in Japan. Te suis have been oued as he

firs assisive nursing mechanism o be cerified under a draf inernaional saey sandard or personal robos.27

Developers mus be cognizan o he poenial or liabiliy o inroducing his echnology o he workplace. Workers compensaion

is inended o provide compensaion o injured employees on a no-aul basis and generally preemps sae law or claims. However, he

law generally permis or claims agains hird paries ha cause workplace injuries. Tus, o he exen manuacuring or design deecs in

exoskeleon echnology cause injuries, he companies will likely ace personal injury claims. Companies and rade groups may consider lega

reorm effors o remove his barrier o ully inegraing his echnology ino he workplace.

Many oher ypes o wearable robos are being developed o assis wih walking, lifing, and perorming oher physical asks. Such roboic

exoskeleons can allow a user o exer several imes heir normal srengh while grealy reducing muscle srain. One o he premiere producers

o such exoskeleons, Ekso Bionics, expecs o have a million people using exoskeleon echnology wihin 10 years. Such sysems could grealy

reduce workers compensaion claims and poenially become a saey requiremen or various dangerous jobs. For hose who suffer back

or oher injuries, heir reurn o duy could be hree imes aser wearing an exoskeleon robo. Addiionally, as prices coninue o all, hesemay soon be classified as a reasonable accommodaion allowing disabled individuals o perorm he essenial requiremens or employmen

Te ransporaion indusry is no sranger o roboics echnology eiher. Auomaker Honda has prediced ha by he year 2020, i wil

sell more robos han cars. Google has prediced ha sel-driving cars will be available in 3-5 years. 28

Te ederal governmen has similarly aken noice o he roboics revoluion. Te ransporaion Securiy Adminisraion (SA) is

reporedly considering he expansion o biomerics and oher auomaed screening echniques o use or airpor securiy purposes in place

o SA agens.29Moreover, he Federal Aviaion Adminisraion (FAA) has approved six esing areas or he commercial use o drones.30

I here was any doub abou he roboics marke poenial, one need only look a he 83% growh o iobo sock in 2013 or

reassurance.31Moreover, in 2013, Google announced i would acquire eigh roboics companiesincluding Nes or $3.2 billiono orm

a new roboics division.

As he roboics, AI, and auomaion fields advance, so, oo, will he inerconneciviy o hese echnologies. According o Cisco Sysems

a whopping 50 billion devices will be wirelessly inerconneced and communicaing wih each oher by he end o he year 2020, up rom

approximaely 10 billion devices oday. And i ha is no impressive enough, ob Lloyd, Ciscos presiden o developmen and sales, has said

ha he value a sake o he Inerne o Everyhing is $14.4 rillion.32

Te roboics revoluion is a ruly global phenomenon. China has esablished a five-year plan o bring roboic echnology o is acories

and all areas o sociey o remain an indusry leader.33In he U.S., no acory is buil wihou a complee review o he efficiencies ha can

be achieved using roboics.

In sum, roboics is one o he ases-growing indusries in he world. I has been esimaed ha by 2025, hal o he jobs in he Unied

Saes will be perormed by brillian machines and inelligen sysems.34oboics is he nex major innovaion o ransorm he workplace

and wil l have as greai no greaerimpac on how employers operae han he Inerne.

So where does labor and employmen law fi in? Creaors and manuacurers o hese new echnologies mus develop producs ha

all wihin he sricures o labor and employmen laws. Demonsraed compliance will be a compeiive necessiy or developers ha wish

o marke heir producs o liabiliy-conscious employers. Moreover, many companies in his indusry are new and small. Ensuring inerna

compliance wih labor and employmen laws will help keep he ocus on heir produc as opposed o avoidable and cosly lawsuis.

Companies ha work wih he manuacurers and ulimae users o heir producs o inegrae new echnologies ino he workplace

can avoid liabiliy by undersanding and working wihin he confines o labor and employmen law. Addiionally, all major players have a

combined ineres in keeping curren on proposed legislaion and regulaions impacing heir indusry.


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Some new legislaive and regulaory iniiaives may have he laudable inenion o bringing oudaed employmen and labor laws up-o

dae wih he new workplace, bu can have uninended negaive consequences. Oher effors will be more ocused on special ineress such as

proecing cerain jobs rom he disrupive effecs o roboics, AI, and 21s cenury auomaion. Such proposed legislaion or regulaions are

almos always flawed in ha hey ail o recognize ha echnology creaes new jobs and innovaion in a global economy, and canno be more

han emporarily delayed. Noneheless, i legislaion or regulaions are going o be considered, employer organizaions have a responsibil iy

o make sure legislaors and regulaors are ully inormed.

Te srucure o his paper races he changes ha emanae rom he inroducion o roboics o he workplace and he resuling

challenges his poses o curren legal regimes. Te chapers are arranged as ollows:

A. Human Displacement

Tis secion begins by discussing roboics mos well-knownand perhaps leas undersoodeffec: he displacemen o jobs and

workers. One o he mos common debaes regarding roboics, AI, and auomaion is wheher he indusry creaes more jobs han i

eliminaes. Tis analysis ges repeaed or almos every kind o robo or AI innovaion ha is inroduced. By definiion, roboics ulfills is

purpose when i oupaces human accomplishmen. Tus, he auomaion o rouine work is boh he goal and he ineviable resul o an

increased use o roboics.

A he same ime, new echnologies are creaing new indusries, new jobs, and more efficien uses o human capial. Tis displacemen

is boh vocaional and geographic, as auomaion and elepresence realize he poenial o a globalized workplace only decades afer he riseo ousourcing.

egulaions and legislaion are commonly proposed o lessen he effecs o job displacemen. Legal issues immediaely include

obligaions or noice o layoffs (WAN), applicable severance pay, i any, and reraining opporuniies. Te more long-erm issues include

uure regulaory or legislaive responses o job eliminaions. arely do such saues and regulaions absoluely prohibi job eliminaion,

bu raher increase he cos o he employer. On a posiive noe, recognized human displacemen encourages a combinaion o reraining

opporuniies sponsored boh by employers and governmen.

B. Union and Non-Union Labor Relations

Tis secion discusses he ools available o managemen and employees o negoiae he impac o echnological changes in boh union

and non-union workplaces. Is an employer required o bargain i i wishes o acquire robos o do work previously perormed by unionized

employees working under a collecive bargaining agreemen? Does he collecive bargaining agreemen conrol he use o robos o perormhis work? A unionized employer seeking o add robos o is business process mus consider hese quesions.

Cerain collecive bargaining agreemens define he work o bargaining uni members, prohibiing such work rom being perormed

by ohers. Does his exclude robos? Does i maer wheher he person who conrols he robos is a unionized co-worker or a non-union

echnician? In he non-union conex, can an employer ell employees ha i hey unionize or seek higher wages, he work will be moved o

anoher locaion where i will be perormed by robos? I becomes increasingly clear ha labor law is a criical concern or employers ha

wish o uilize robos in he union and non-union conex.

C. Anti-Discrimination

Tis secion ocuses on he challenges o mainaining equal opporuniy in he conex o changes ha es radiional allocaions o

advanage and disadvanage. Advanced roboics and AI used in recruiing mus be complian wih ani-discriminaion laws. While roboics

creaes new compliance challenges, i has he poenial o increase compliance wih ani-discriminaion saues.As previously discussed, quesions asked by a robo in a job inerview can be pre-screened o ensure legal compliance. On he oher

hand, employers and developers mus consider wheher he inormaion obained and analyzed could have a disparae impac on cerain

classes o individuals. W hen behavioral daa is colleced and compared o similar daa abou successul workers, uninended correlaions can

emerge ha negaively impac candidaes. For example, use o cerain sofware programs migh be more common or younger workers ye

no necessary or cerain jobs under consideraion.


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I may be ha workers who have six monhs o prior unemploymen as a group are less desirable, bu using such a crierion could

adversely impac minoriies. Also, several saes are considering legislaion o proec long-erm unemployed people rom being screened ou

on ha crierion alone. Te ways a sofware program evaluaes a job candidae or exising employees mus be reviewed o make cerain ha

disparae impac is no occurring, or i i is, ha i is jusified by legiimae business requiremens.

D. Wage & Hour

Tis secion addresses he applicaion o wage and hour law o he rapidly receding limis on when and where work happens. Whilerobos are no subjec o minimum wage and overime pay requiremens, an increasing number o robos are operaed by humans locaed

almos anywhere in he world. W ha wage and hour laws cover an operaor who works wih robos eigh hours a day in a differen sae

or counry?

Currenly, he mos likely law o apply would be he wage and hour laws o he sae or counry where he operaor is locaed. As his

orm o disribued work becomes more popular and producive wih new generaions o robos, will wage and hour laws change? Anoher

area o grea ineres and a source o curren liigaion is he appropriaeness o reaing disan workers as independen conracors.

An example would be reaining a sofware engineer or a projec over he Inerne hrough a hird-pary sie such as Elance and ODesk

(which are merging)is he worker an independen conracor? Tese are jus a ew o he wage and hour concerns ha may arise.

E. Health & Safety

Tis secion addresses he applicaion o OSHA and oher healh and saey sandards o some o he unique issues inheren in he useo roboics in he workplace. Under OSHA, employers are required o mainain a sae workplace. Several OSHA regulaions and guidelines

already cover workplace roboics. Moreover, he American Naional Sandards Insiue (ANSI) recenly updaed is sandards governing

roboics saey. Every manuacurer o robos or he workplace mus be aware o hese regulaions, and engage in he debae ha will ensue

as governmens a all levels propose new regulaions. Ironically, workplace robos are OSHA-regulaed o proec humans rom robos. On

he oher hand, robos have he poenial o subsanially reduce he number o workplace injuries.

Tere are dozens o specialized agencies ha cover various indusries and pracices ha are now being redefined hrough roboics.

From inersae rucking and airlines o implans and medical devices, agencies and regulaions designed o proec he public will and are

increasingly covering roboics. For example, robos are regulaed by muliple ederal and sae agencies, including he FDA, he FAA, OSHA

and he NHSA. Agency regulaions applicable o robos have a major impac on employmen and labor laws.

F. Workers Compensation

Tis secion considers he abiliy o workers compensaion o deray risks o workplace injuries wihou sifling innovaion. Back injuries

are he mos common injuries covered by workers compensaion laws. One o he uurisic ways o prevening hese injuries or assising a

worker wih back injuries is o provide a roboic exoskeleon or wearable robo. Tis echnology promises o allow a paraplegic o walk and

provide workers wih 10 imes heir normal srengh, all while grealy reducing sain on workers bodies. A properly developed sysem aking

advanage o workers compensaion saues can grealy expand he marke or exoskeleons. Accordingly, roboics companies need o

consider workers compensaion programs and he law, boh as a source o poenial business and a liabi liy o be quanified and minimized

An enirely differen analysis is needed regarding workers compensaion preempion and he roboics indusry. Workers compensaion

provides compensaion o injured workers regardless o aul. Meanwhile, employers need no ear or acions rom heir workers since

such lawsuis are preemped by workers compensaion saues. However, or lawsuis are allowed agains hird paries such as equipmen

manuacurers. Developers o new echnologies mus be acive in he policy debae o ensure liigaion does no unnecessarily sifle

innovaion.G. Tort Liability Issues

Tis secion examines he or law implicaions o roboics. I an elecric saw injures a worker, he employer is proeced by workers

compensaion bu he manuacurers o he saw are no. Would he same sandards apply o robos who ake over jobs previously perormed

by humans? igh now, he answer is yes and he poenial liabiliy could slow he adopion o roboics. Is here any poenial or having

roboics manuacurers become covered by he preempion ha applies o employers? Is enirely new legislaion needed or likely regarding

workplace roboics? Should we rea roboics as we do he Inerne and gun manuacurers, providing immuniy i he robo is misused or

programed o do an illegal ac? Is here a difference beween open roboics where he ulimae applicaion is deermined by he user or a

hird-pary inegraor,35verses closed roboics where he uncion is preprogramed and defined by he manuacurer?


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H. Privacy

Tis secion addresses individual privacy concerns employers mus consider when aced wih unlimied access o inormaion abou

heir employees. Many o he roboic sysems and AI programs being developed collec daa (ofen big daa). Tis could include names

addresses, accoun numbers, and credi card inormaion colleced o evaluae buying paerns. Legally correc noices allowing he collecion

and use o he inormaion are required.

Addiionally, here is poenial liabiliy or he securiy o he inormaion. I a breach occurs, here are now muliple saes wihnoificaion requiremens. Depending on he counry involved and he naure o he inormaion ransmied o and rom each locaion,

roboics daa privacy direcives may apply. Te mos well-known is in he EU, bu many oher naions have implemened similar resrains

on he ranser o daa over naional boundaries.

I. Trade Secrets

Tis secionaddresses how he law o rade secres srikes he balance beween he incenives or invenion and he ree exchange o

ideas. Tis area o employmen and labor law has a direc applicaion o he developmen o roboics. Has he roboics producer esablished

sufficien conrols o proec proprieary inormaion and rade secres? Can an employee o a roboics company be required o sign a non

compee agreemen? In wha sae is he work aking place? Can he employee and he roboics company agree o apply he law or a differen

sae? Like all echnology companies, roboics developers mus have legally enorceable agreemens wih employees, vendors, and ohers

wih access o sensiive inormaion o proec inellecual propery.

J. eDiscovery

Tis secionaddresses he abiliy o eDiscovery echnology o harness inormaion in liigaion. Increasingly, digial robos and sofware

sysems are replacing aorneys in he collecion and classificaion o elecronic evidence. Meanwhile, oher roboic sysems generae massive

amouns o daa providing a digial reproducion o aciviies and evens. Tis is opening new visas or eDiscovery and corporae planning

or daa preservaion. How many roboic sysems are being engineered o provide evidence i heir programing and sored memories are

subpoenaed? For example, sel-driving cars can be engineered o provide deailed elecronic records i a raffic acciden occurs. Wha daa

should be available or discovery and how long should i be preserved?

eDiscovery is becoming more sophisicaed. Sofware programs are a poenial means o inelligenly searching vas daa banks or

relevan inormaion. Is eDiscovery inormaics sufficien o mee legal requiremens?

K. HealthcareTis secionexplores he rapidly expanding use o roboics and elemedicine in he healhcare indusry. Healhcare is clearly an indusry

o choice or roboic expansion. Approximaely one-hird o all roboic sysems and AI sar-ups are conneced o he healhcare indusry. I

is prediced ha in a decade, 80% o wha a docor does oday will be done by brillian machines and sofware programs. Everyhing rom

medical wase ransporaion o remoe presence surgeries are being perormed by robos. Advanced compuing sysems are even being used

or diagnosic purposes. Ye, he use o roboics and AI has generaed malpracice lawsuis as well as healh privacy-relaed concerns. Te

legal implicaions o using roboics in his indusry are hereore grea and varied.

L. Legislative & Regulatory Considerations

Wheher and how he law will respond o his ransormaion remains o be seen. Te final secion on poenial legislaive and regulaory

shifs provides some insigh ino possible legislaive responses o he myriad changes in he workplace and working relaionships. Employers

can expec new laws and regulaions ha aemp o balance various ineress, including workplace saey, increased produciviy, rerainingopporuniies, and echnological unemploymen resuling rom he roboics revoluion.

For example, he impending Inernaional Labour Organizaion (ILO) repor on roboics o he EU Parliamen will grealy influence

wheher resricive regulaions, legislaion or agreemens can be expeced. Liler, hrough is Workplace Policy Insiue, will be providing

requen updaes and research repors on he imporance o he roboics revoluion or developers and users o his new echnology.

Finally, he Appendix o his epor examines how he roboics revoluion will impac he employmen-based ax sysem in his counry

and he implicaions on exising social insurance programs.


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Conclusion and Practical Recommendations

Te workplace and workorce will change. New jobs will be invened, he need or SEM-educaed workers will accelerae, raining and

non-radiional web-based educaion will hrive, disance work will become more common, and high-level coningen workers will prosper

Fory percen o he Forune 500 companies will no longer be on he lis due o disrupive echnologies. 36

We have sared wih his epor a decade-long journey down he pah o he uure workplace. Lilers commimen will be o provide a

360-degree analysis o he changing employmen and labor laws ha will ollow. Much o his change will come no rom new laws, bu romcours and regulaory agencies aemping o apply well-esablished labor and employmen laws o a workorce and virual workplaces ha

were unimaginable decades ago. Apar rom predicing hese inerpreaions, we will provide pracical compliance recommendaions. We

inend o also educae he judicial bar, regulaors, and legislaors on he new workplace and pracical realiies. Generally, we will recommend

agains new laws and regulaions unless and unil he need or change is dramaic. We recognize ha some o he bes-inended changes have

unexpeced consequences. Our approach borrows a promise rom he Hippocraic Oah: o absain rom doing harm. We recognize also

ha cerain organizaions aemping o mainain he saus quo will seek resricions on he use o new echnologies as a flawed means o

saving jobs. Ironically, in a global inerconneced economy wih real-ime compeiion, hese effors will resul in los jobs hrough global

compeiion. o complee a 360-degree view, we will look a his uure hrough he eyes o he workorce o recommend ways o mee needs

and preserve workplace values ha do no change, such as respec, airness, and rewarding ingenuiy and hard work. 37

We hope his epor serves as a valuable roadmap o he labor and employmen law issues creaed by hese emergen echnologies

and he evolving workplace. Again, we invie your suggesions, commens, and oher orms o eedback such as unexplored issues and

unanswered quesions. Tis inpu and he increased scruiny o he nearly 100 employmen and labor lawyer making up Lilers oboics,

AI, and Auomaion Pracice Group, promise o make he issuance o he May 2014 Liler epor on oboics, AI, and Auomaion one o

he Firms mos comprehensive hough leadership effors.


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II. WORKPLACE LAW CHALLENGES AND SOLUTIONS

I is no surprise ha advanced echnologies improve saey and increase efficiency in he workplace. Bu while saey and produciviy are

imporan goals, oher aspecs o employmen are also impaced by roboics and AI, and mus be addressed. Te ollowing discusses in deai

he mos significan areas o workplace law employers need o bear in mind when designing, manuacuring, and/or using roboics echnology

A. Human Displacement

1. Do Robots Create More Jobs Than They Eliminate?

Troughou hisory, new echnology has displaced older echnology and relaed jobs, bu generally he resul is a ne increase in jobs

or he overall economy. Elecric lighs replaced candles. Auomobiles replaced horse-drawn carriages and wagons. Compuers replaced

ypewriers. Memory cards replaced film. Bu no one would doub ha he number o jobs creaed by hese new echnologies vasly

ounumbered hose jobs los.

Tere remains much debae wheher his same dynamic will apply o he field o roboics. Many exising jobs will be auomaed in he

nex 20 years. Several repeiive, low-skil led jobs are already being supplaned by echnology. However, a number o sudies have ound ha

in he aggregae, he roboics indusry is creaing more jobs han robos replace. For example, he Inernaional Federaion o oboics (IF)

esimaes ha roboics direcly creaed our o six million jobs hrough 2011, wih he oal rising o eigh o 10 million i indirec jobs are

couned. Te IF projecs ha 1.9 o 3.5 million jobs will be creaed in he nex eigh years.38O course, here will be workers displaced as a

resul o he use o robos, and employers mus address he legal righs o such workers.

2. If Robots Displace Employees, What Advance Notice Requirements Exist Under Federal or State Law?

Tere are no laws in he Unied Saes specifically requiring advance noice o job loss due o displacemen by robos. Tere are a numbe

o laws ha require advance noice o job loss generally. Te mos imporan o hese advance noice saues is he Worker Adjusmen and

eraining Noificaion Ac (WAN).39Te purpose o WAN is o aemp o limi he adverse effecs on employees and communiies

associaed wih a plan closing or mass layoff by requiring advance noice o such evens and o allow displaced workers ime o rerain and

locae alernaive employmen. Alhough WAN does no preven an employer rom implemening a mass layoff or closing a aci liy, i does

require cerain employers o noiy employees, heir represenaives, and cerain local and sae governmen officials, 60 days in advance o

such acions.

WAN applies o employers wih 100 or more employees in U.S.-based operaions. WAN requires covered employers o provide

employees wih 60 days advance wrien noice o a plan closing or layoff only i he plan shudown (which includes closing o deparmens, produc lines or oher recognized organizaional unis) will resul in an

employmen loss or 50 or more ull-ime employees a ha sie wihin a 30-day period, or

layoffs ha are no he resul o plan closing resul in he loss o employmen a a single sie o employmen or a leas 33% o acive

employees, excluding par-imers, and a leas 50 employees; or alernaively, resuls in loss o employmen or 500 or more ull-ime

employees regardless o he percenage.

WAN includes 30-day and 90-day aggregaion periods which someimes resul in WAN noice o employees suffering a job loss early

in a period ha he employer did no expec would warran a WAN noice. Te noice period may also be reduced when he dislocaing

even is caused by business circumsances ha were no reasonably oreseeable 60 days beore he mass layoff or plan closing. Also, he

60-day noice period may be reduced wih respec o a plan closing or a alering company ha is rying o say in business by seeking

addiional capial or business. However, an employer relying on he alering company excepion mus mee several sric requiremensWAN is a complicaed saue and employers mus plan in advance o plan closings and mass layoffs o deermine wheher noice is

required and o which persons or eniies.

A number o saes have passed saues or ordinances, someimes reerred o as Mini-WAN saues, requiring advance noice o

cerain job acions.40A number o hese Mini-WAN obligaions are similar o he ederal WAN saue, bu apply o smaller employers or

a smaller number o affeced workers (CA, CN, HI, IL, IA, MA, MD, NH, NJ, NY, N, WI), require severance pay or erminaion benefis

under a saed ormula (HI, ME, NJ), or mandae a longer noice period (NY). Some saes also require (mandaory) or reques (volunary)


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ha employers noiy he sae unemploymen agency o group erminaions so he agency can be ready or an influx o unemploymen

claims (AL, GA, MI, MN, NC, OH, X). A ew saes essenially replicae he ederal WAN provisions bu add noice o cerain oher

eniies (MN, O).

Failure o provide adequae noice under WAN or he Mini-WAN saues generally resuls in employer liabiliy o employees or

compensaion ha he employee would have earned during he noice period. Tese saues also impose penalies o varying amouns or

ailure o give noice, paricularly o governmen eniies and in some insances, o employees due noice. Applicaion o WAN and heMini-WAN saues can be quie complicaed and advice o qualified counsel is imporan o insure compliance.

3. Are There Mandatory Severance Obligations?

Absen any wrien or oral conracs providing or severance upon he erminaion o an individuals employmen, here is no genera

obligaion under eiher ederal or sae law requiring severance upon an employees erminaion in general or based on displacemen due o

robos. All saes have unemploymen compensaion sysems ha provide benefis o displaced workers or varying lenghs o ime hrough

insurance-based sysems. Te cos o hese benefis is borne by employers generally in he individual saes, bu companies ha lay off greaer

numbers o workers ypically incur higher premiums or unemploymen insurance and are charged back or he cos o benefis.

As briefly menioned above, employers may be required o pay mandaory severance benefis or ailure o comply wih sae Mini-WAN

laws. Specifically, Hawaii requires he paymen o a dislocaed worker allowance in he amoun o he difference beween he employees las

average weekly pay rae and he amoun o unemploymen or up o our weeks, provided here is no oher severance righ available.41

InMaine, an employer ha relocaes or erminaes a covered esablishmen will be liable o eligible employees or severance pay a he rae o

one weeks pay or each year o employmen in he esablishmen. Severance pay is in addiion o any final wage paymens and mus be paid

wihin one regular pay period afer he employees las ull day o work, bu may be offse by oher severance benefis paid.42I employers in

New Jersey provide less han he required noice or covered aciliy closings or layoffs, he employee is eniled o severance pay equal o one

week o pay or each ull year o employmen. Te rae o severance pay mus be he average regular rae o compensaion received during

he employees las hree years o employmen wih he employer or he final regular rae, whichever is higher. Such severance is in addiion

o any oher severance paid by he employer, excep ha any back pay provided by he employer due o a violaion o ederal WAN will be

credied oward he severance penaly.43

Many employers provide severance benefis o employees under employee benefi plans covered by EISA or under inormal severance

programs. Tese programs ypically involve paymen o severance benefis or job loss due o economic condiions which ypically would

include displacemen by robos. Benefis vary considerably bu ofen are calculaed based on he employees pay rae and lengh o service.Mos employers require employees o sign a release o claims o receive all or par o offered severance benefis. Any release agreemens

signed by employees in exchange or volunary severance paymens and/or oher benefis mus comply wih he requiremens o he edera

Older Workers Benefi Proecion Ac (OWBPA)44in order or a waiver o he righ o recover or age discriminaion in violaion o he Age

Discriminaion in Employmen Ac (ADEA) o be effecive. Te OWBPA requires releases o conain specific erms including being wrien

in undersandable language or he average person presened wih he release, specifically reer o he ADEA, sae ha he individual does

no waive uure claims, provide consideraion in addiion o wha he individual is oherwise eniled, advise he individual o consul wih

an aorney, and allow a leas 21 days o consider wheher o sign and provide seven days o revoke afer signing.45

Severance pay offered as par o an employmen erminaion program which can involve as ew as wo employees, mus allow he

individuals a leas 45 days o consider wheher o sign he release insead o he 21-day period reerenced above in order o comply wih he

OWBPA. Moreover, in an effor o provide employees wih he inormaion ha will allow hem (and heir aorneys) o make an inormed

decision relaing o he release, employers mus aach a disclosure inorming he employees o he decisional uni considered in he

program, he applicable ime limis, he crieria or eligibiliy, and he job iles and ages (bu no names) o persons eligible or seleced or

he program and hose individuals in he same job classificaion or organizaion uni who are no eligible or seleced or he program. 46Like

wih WAN noice requiremens, hese obligaions can be quie complicaed and employers should seek qualified counsel o assis wih

preparing necessary releases and disclosures.

4. Are Federal or State Retraining Funds or Programs Available to Employees Displaced by Robots?

For as many new jobs as will be creaed hrough roboics and auomaion, workers whose posiions are replaced by such echnology wil

no slip easily ino hese newly creaed jobs. Tis is paricularly rue or hose holding blue collar posiions, who will insead likely become


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dislocaed workers. A dislocaed worker is an individual who has been laid off, and is unlikely o reurn o his or her previous occupaion or

indusry due o oreign compeiion or echnological change. Local and ederal governmens reacing o human displacemen and WAN

evens will need o rehink and reool exising reraining programs.

Te blue collar jobs o he uure will require greaer worker adapabiliy and greaer echnological sophisicaion.47odays displaced

blue collar workers will need job raining o possibly fill hose posiions where grea needs exis. According o he Bureau o Labor Saisics

he U.S. unemploymen rae remained above 7% or he las our years, ye 3.9 million U.S. jobs wen unfilled in Ocober 2013.48

As briefly discussed above, i jobs are los due o roboics echnology, jus as wih any oher WAN-riggering job loss, employers mus

also noiy he sae dislocaed worker uni and he chie eleced official o he local governmen where he closing or layoff will occur. 49

Te sae dislocaed worker unis receiving he WAN noices vary in purpose, ocus and uncionaliy, bu he primary purpose o

hese unis is o help reinegrae dislocaed employees back ino he workorce. Te Deparmen o Labors Employmen and raining

Adminisraion (EA) also provides inormaion on raining programs and oher serv ices available o assis laid-off workers or hose who

are abou o be laid off. Presiden Obama has pushed o expand unding or job raining a communiy colleges and o esablish a nework o

regional manuacuring hubs pulling ogeher academia, privae employers, and he governmen o oser innovaion and rerain workers.5

Wheher hese effors will succeed, and wheher he dislocaed worker unis will ocus raining effors on he nex generaion o jobs, wil

coninue o depend upon legislaive, academic, and corporae effors.

5. How Should Employers Best Address These Issues?While no curren U.S. laws require advance noice o job loss specifically due o displacemen by robos or oher auomaion, employers

sill mus be aware o he requiremens under WAN. Failure o comply will expose employers o penalies, back wages and benefis, and

aorneys ees.51In addiion, because sae law, union agreemens, and employer policies may provide employees wih greaer righs han

are provided by WAN, a company conroned wih a WAN siuaion needs o be aware o wha may be provided by local laws, union

agreemens, and employer policies.

Employers ha operae ouside o he U.S. should be aware ha oher counries mainain diverse laws proecing workers affeced

by layoffs and closings. Some counries, including China and he member-saes o he European Union, require ha employers comply

wih cerain noice procedures prior o mass layoffs.52For example, he European Union requires ha employers subjec o EU law coner

wih employees when considering mass layoffs by providing workers wih inormaion regarding he proposed layoffs, considering workers

consrucive proposals, and providing noice o he relevan sae auhoriy.53Counries may also resric employers discreion over whom

o erminae and even wheher layoffs may occur.54 Addiionally, some counries, including China and Mexico, require ha employerscompensae employees erminaed as a resul o layoffs or plan closings.55In ac, Mexican law specifically requires compensaion when

employees become redundan as a resul o he incorporaion o new echnologies ino he workplace.56

Te pachwork o naional laws relaing o layoffs creaes boh risks and opporuniies or employers doing business ouside o he

Unied Saes. While some counries regulae he manner and permissible exen o layoffs in grea deail, ohers do no. Tus, in addiion

o limiing liabiliy, cognizance o various naions reamen o layoffs can provide a compeiive advanage o employers when choosing

where o base heir operaions. In order o avoid he risk o high coss o compliance, and o realize he advanages o hospiable legal regimes

businesses should seek counsel or decisions relaing o boh personnel and he locaions o poenial bases o operaion.

B. Union and Non-Union Labor Relations

While he subjec o roboics involves bleeding-edge echnology, decades-old legal conceps govern he labor law implicaions o he

implemenaion o roboics. In 1935, Congress enaced he Naional Labor elaions Ac (NLR)57o proec, among oher hings, he

righs o employees o unionize or oherwise engage in proeced concered aciviy. Mos non-union employers do no spend a lo o ime

worrying abou he NLR, bu any employerunion or non-unionconsidering implemening roboics needs o have a firm grasp on he

legal sricures i imposes.

1. Robotics and Protected Concerted Activity

Mos employers are non-union, are no currenly encounering organizing aciviy, and preer o say ha way. o do so, employers mus

be cognizan o boh how hey communicae he concep o roboics and he requiremens o he NLR when hey decide o inroduce

roboics ino he workplace.


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Te way an employer communicaes he concep o roboics or auomaion o employees is criical o employee accepance. While

employers view roboics as a mehod or increasing produciviy and efficiency, employees ofen see only poenial job loss. Probably among

he greaes drivers o union organizing aciviy is employees ear o losing heir jobs. Unions migh exploi he ear o job loss creaed by

he specer o roboic replacemen in heir effors o solici employees. For his reason, employers should be careul o couch any discussions

o roboics in hones erms o he benefis ha auomaion will provide or employees: greaer saey, less arduous working condiions,

or an overall improvemen in he workplace. I produciviy doubles due o he use o robos and business correspondingly expands, his

does no mean ha he human workorce needs o decline. Also, i one employer does no use he laes echnology in an effor o preserve

employmen, i will be unable o compee wih oher employers worldwide ha are using advanced echnology. Accordingly, employees

would be laid off because o declining business.

egardless o how he inroducion o roboics is presened, employers should be ready or employees o reac wih concern abou

heir jobs. Secion 7 o he NLR proecs employees righ o engage in concered aciviy, wih or wihou a union, or muual aid or

proecion.58Tis means ha he NLR proecs employees who ac wih or on he auhoriy o oher employees; seek o iniiae, induce,

or prepare or group acion; or bring group concerns or complains o he aenion o managemen. Tus, wihin cerain limis, employees

may speak ou agains he inroducion o roboics, hreaen o unionize, complain o he public or he employers cusomers, or even walk

off he job or picke he employer as a orm o proes. For example, in rompler, In. v. NLRB,59six non-union workers walked off he job o

proes a supervisors behavior. While in he non-labor conex such behavior migh be labeled insubordinaion, or even job abandonmen

he Naional Labor elaions Board (NLB or he Board), he ederal agency charged wih enorcing he NLR, held i was proecedconcered aciviy.

Over he years, and paricularly recenly, he NLB has significanly expanded is view o he conduc ha alls wihin he ambi o he

NLRs proecion. In addiion o proecing employees who ac ogeher in groups o wo or more, Secion 7s proecion also exends o an

employee who acs alone i he employees aciviies are he logical ougrowh o work-relaed concerns expressed by employees collecively.6

For example, inNLRB v. Caval ool Diviion,61he NLB ound Secion 7 proeced a single employees criicism o an employers new break

policy during a company meeing because he employee sough a change in he erms and condiions o employmen or all employees. On he

oher hand, conduc is no proeced concered aciviy i he employee is engaging in aciviy solely by and on behal o he employee himsel. 6

Tis is no o say ha he NLR proecs all employee conduc. While he NLB coninues o broaden he scope o Secion 7s

proecions, unlawul, violen,63or excepionally disloyal conduc exceeds he proecion o he NLR. For example, he NLR does no

proec maerially alse public commens abou an employers producs or service,64

nor does i shield an employees effors o convince oheremployees o qui and go work or a unionized employer.65

Employer responses o proeced concered aciviy mus be measured. Te NLR makes i unlawul or employers o discipline

discharge, or oherwise ake adverse acion agains employees because hey engage in proeced aciviy. For example, an employee who

complains ha he inroducion o roboics will resul in layoffs, or oherwise proess he effec o roboics on he erms and condiions o

employmen, likely is engaged in proeced concered aciviy. Subsequenly laying he employee off or aking oher adverse acion agains

him beaue o hi omplain would violae Secion 7. However, laying he employee off because he inroducion o roboics rendered

his posiion superfluous would no violae he NLR. When conroned wih employee behavior ha appears o push he boundaries o

proeced aciviy, employers should conac legal counsel beore aking acion. Again, he bes way o deal wih employee concerns abou

he inroducion o roboics is by communicaing ofen and effecively wih employees abou he benefis o a roboic workplace and he

criical role employees serve wihin i.

2. Robotics and the Union Campaign

As discussed above, unions may ry o capialize on employee ears semming rom he possible implemenaion o roboics o

spur unionizaion. Employers aced wih a union organizing drive need o be even more careul o he way hey communicae abou he

poenial use o roboics wih employees. In addiion o proecing employees righ o organize, he NLR, as inerpreed by he NLB

places significan resricions on wha an employer can and canno communicae o employees during an organizing campaign. Alhough

employers have a consiuional righ o express opinions ha are non-coercive in naure,66communicaions ha employees could perceive

as an express or implied hrea o plan closure (in avor o a new auomaed aciliy) or o discharge (in avor o a roboic workorce) made

during an organizing campaign generally consiue unlawul inererence wih employees Secion 7 righ o organize.67


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For hese reasons, an employer seeking o discuss a possible ransiion o a roboic workplace during an organizing campaign should

read lighly. I is almos cerainly unlawul or an employer o sae ha i employees elec a union, i will begin auomaing he aciliy o save

money and achieve flexibiliy and efficiency ha a unionized workorce could no provide.68Indeed, he NLB has long held ha employers

ha base heir predicions ha hey will have o close or move i unionized on a general belie ha unionizaion will increase labor coss,

violae he NLR.69

Neverheless, he expression o an employers views does no consiue an unair labor pracice i he views conain no hrea o reprisalorce or promise o benefi.70Employers may lawully make predicions on he precise effecs ha he employer believes unionizaion will

have on he company, so long as hey base hose predicions on objecive ac and circumsances ouside o heir conrol.71I he employer

basis or such predicions is no objecive ac, however, he predicions may violae he NLR.72

I an employers possible inroducion o roboics ino he workplace is an issue in an organizing campaign, he employer will need o

discuss he possibiliy in a lawul manner. Probably he saes course would be o acknowledge ha he employer has explored he issue, and

wheher i ulimaely chooses o move orward wih roboics will no depend on wheher employees voe or he union. Moreover, i he

employer has already made he decision o ransiion o roboics beore he commencemen o a union organizing drive, he employer may

communicae ha decision o employees.

3. Bargaining over Robotics

Once an employers employees elec a union o represen hem, he NLR imposes specific obligaions on boh he employer and heunion ha may impac he inroducion o a roboic workplace. Chie among hese obligaions is he duy o engage in collecive bargaining

Specifically, he NLR requires:

. . . he perormance o he muual obligaion o he employer and he represenaive o employees o mee areasonable imes and coner in good aih wih respec o wages, hours and oher condiions o employmen . . .

bu such obligaion does no compel eiher pary o agree o a proposal or require he making o a concession.73

Alhough he NLR expressly limis he duy o bargain o cerain subjecs (i.e., wages, hours and oher condiions o employmen)

he NLB inerpres hose mandaory subjecs o bargaining broadly. Tus, mandaory bargaining subjecs include no jus wages and

hours, bu also meri increases, bonuses, pensions, profi-sharing, healh and welare plans, discharges, grievance procedures, disciplinary

procedures, drug esing, senioriy, promoions, ransers, healh and saey, work assignmens, plan closings, and myriad oher subjecs ha

direcly impac employees livelihoods.74

Because an employers use o roboics necessarily affecs exising employees erms and condiions o employmen, eiher by subsanially

changing he naure o heir jobs or by eliminaing bargaining uni jobs or work alogeher, roboics could become a mandaory subjec o

bargaining.75While here appear o be ew NLB decisions concerning he ransiion o a roboic workorce, he NLB has long held ha

a echnological change ha significanly affecs an employers unionized workorce is a mandaory subjec o bargaining. For example, in

Renon New Reord, a group o newspaper indusry employers sough ways o improve operaions, increase oupu and improve mechanica

qualiy. Tis improvemen process resuled in he auomaion o cerain asks and a reducion o he workorce. Te NLB ound ha

he NLR required he employers o bargain concerning heir inended change o operaions and is effecs upon he composing room

employees, and heir reusal o do so violaed he NLR.76

Te NLB reached he same resul inLeah Corp.77Tere, because o auomaion and oher echnological improvemens, an employer

changed rom a bach sysem o a jus-in-ime manuacuring process. Alhough he changes involved were purely mechanical and involved

no undamenal manuacuring process change, he NLB ound he employer unlawully ailed o bargain over he change. Tus, even i anemployers inroducion o roboics ino he workplace makes no undamenal change o he employers processes, he mechanical change

isel, i.e.he change o roboics, is likely a mandaory subjec o bargaining.

Absen a waiver o he unions righ o bargain, unilaeral changes o erms and condiions o employmen ha involve mandaory

subjecs o bargaining is aper eviolaion o he NLR.78An unlawul unilaeral change is one made by he employer wihou firs bargaining

abou he changes wih he union andeiher bargaining o an impasse orobaining union agreemen.79Te rule applies o any change o a

mandaory subjec o bargaining ha is a maerial, subsanial and significan change o he erms and condiions o employmen regardless

o he employers moive or he change.80


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For his reason, employers negoiaing an iniial collecive bargaining agreemen (CBA or conrac) should generally aemp o

negoiae a robus managemen righs clause ha reserves he employers righ o make operaional changes and a no-srike clause ha

prohibis employees rom sriking over such changes during he erm o he agreemen. Tis is paricularly rue or employers considering

a move oward a roboic workplace. Such employers should seek a managemen righs or oher clause ha gives hem he specific righ

o adop echnological or mechanical changes o heir workplaces wihou urher bargaining wih he union. Te NLB and arbiraors

generally enorce such clauses as a waiver o he unions righ o bargain over such issues, so long as he clause is clear and unmisakable.81

An ideal managemen righs or echnological changes clause specifically acknowledges he employers righ o auomae processes or

implemen roboics. Moreover, because he move oward a roboic workorce may require changes o or expansion o employees duies, an

ideal managemen righs clause would allow an employer o make hose sors o changes wihou bargaining wih he union.

By he same oken, employers should be aware ha cerain conrac language could resric heir abiliy o inroduce roboics o he

workplace. Language ha limis when an employer may make operaional or echnological changes, resrics an employer rom changing o

alering employees job duies, precludes he erosion o bargaining uni work, or requires he employer o discuss any such changes beore

making a decision, could preven or significanly delay an employers move oward a roboic workplace. Similarly, conrac language ha

precludes an employer rom ranserring bargaining uni work o new posiions or classificaions could preven an employer rom creaing a

new posiion o operae a robo ha perorms work previously done by members o he bargaining uni.

Anoher significan concern or employers negoiaing an iniial, or even a successor, CBA, is ha he union will likely bargain very

hard or conrac language ha proecs employee job securiy. Tis is paricularly rue when he union believes ha he employer may be

considering changes, such as he implemenaion o roboics, ha could significanly aler he bargaining uni, eiher by changing employee

job responsibil iies, or more likely, culminaing in a reducion-in-orce. For example, collecive bargaining agreemens in he auomoive

indusry, which is boh heavily unionized and heavily auomaed, conain significan employee securiy and income provisions proecing

employees. Facors such as he srengh o he union, ear over imminen job loss, or oher economic acors could render employees more

willing o srike raher han agree o conrac language allowing or he implemenaion o roboics wihou addiional bargaining.

Te NLR does no require eiher pary o agree o he ohers demands. However, when no collecive bargaining agreemen governs he

erms and condiions o employmeneiher because he paries have no negoiaed one or because he previous agreemen expiredan

employer may bargain o impasse over mandaory subjecs o bargaining. I he paries reach impasse on a mandaory subjec o bargaining

he employer may implemen is proposal. Tis sor o unilaeral implemenaion should no be underaken lighly, as i could provoke a

srike or oher acion rom he union.Alhough an employers duy o bargain over erms and condiions commonly arises in negoiaions or an iniial or successor conrac

i applies also during he erm o an exising collecive bargaining agreemen when one o he paries proposes a course o acion or change

ha affecs a mandaory subjec o bargaining.82Moreover, because he implemenaion o roboics, in mos insances, is a mandaory subjec

o bargaining, absen a clear and unequivocal waiver o he righ o bargain over he subjec, an employer will be obligaed o bargain over he

implemenaion o roboics even i he CBA is silen on he issue. 83

Even when he paries CBA expressly permis an employer o increase is reliance on roboics wihou bargaining wih he union, oher

elemens o he decision may sill require bargaining. For example, i he increased reliance on roboics includes he relocaion o work o a

more echnologically advanced aci liy, he employer may be required o bargain over he relocaion o bargaining uni work even i he CBA

permis he employer o adop echnological improvemens unilaerally.84For example, inDubuque Paking Co., he NLB concluded an

employer has a duy o bargain over he relocaion o bargaining uni work i labor coss are a acor in he decision o relocae, unless i canshow he union could no have offered labor cos concessions ha could have changed he employers decision o relocae. 85

I is also imporan o noe ha even i an employer is ree o make a decision o ransiion o a roboic workplace wihou bargaining

wih he union, i sill may be required o bargain over he effeco ha decision.86Te purpose o effecs bargaining is o give he union an

opporuniy o bargain over he righs o he employees whose employmen saus will be alered by he managerial decision.87 [I]ssues

such as severance pay, senioriy and pensions, among ohers, are necessarily o paricular relevance and imporance in effecs bargaining.8

Addiionally, ailing o give a union sufficien ime o bargain over effecs may be an unair labor pracice.89


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4. Practical Recommendations Moving Forward

Jus as a roboic uure signals opimism or employers seeking o improve efficiency and saey while reducing coss, i may righen

employees who ear job loss. Wheher union or non-union, employers should be aware o ha apprehension when broaching he subjec

wih employees. Unions may exploi workers ears o organize non-union workplaces; in union workplaces, unions may leverage hose

same concerns o make conrac language resricing he employers righ o inroduce roboics a srike issue during negoiaions. For hese

reasons, communicaion is he key o a successul ransiion o a roboic workplace or boh union and non-union employers. For he easies

ransiion possible, employers mus sell heir workorces on he hones, posiive benefis o he roboic workplace o heir employees.

Employers ha are currenly bargaining or a new agreemen should bargain or language ha allows hem o inroduce roboics wihou

urher bargaining. Mos unions will vigorously oppose any such language, and/or will seek significan concessions or assurances in reurn.

Union employers who are paries o an exising CBA should review he conrac o deermine wheher hey are obligaed o bargain

over he inroducion o roboics. I he employer is obligaed o bargain, i should be prepared o bargain over boh he decision isel and

he effecs o ha decision. Te employer should also expec he union o reuse o bargain during he erm o he exising conrac i i can

credibly do so, and or he union o oppose vigorously any such change whenever bargaining acually occurs. Employers should also prepare

or he union o hreaen, and possibly carry ou is hrea, o srike over he issue.

Labor law creaes a minefield or unwary employers ha wan o inegrae roboics ino heir workplaces. Employers should ake heir

ime in planning hese changes, and should consul wih labor counsel beore moving orward in order o ease he ransiion.C. Anti-Discrimination

Employers mus consider how he roboics revoluion will implicae ani-discriminaion laws. For example, advanced roboics used

in recruiing mus be complian wih ani-discriminaion laws. In some respecs, compliance wih ani-discriminaion saues is improved

when roboic sysems are implemened. By way o example, inerview quesions asked by a robo, isel unbiased, in a job inerview can be

pre-screened o ensure legal compliance. However, behavioral analysis and oher orms o daa acquired by robos could have a disparae

impac on proeced caegories. When behavioral daa is colleced and compared o similar daa abou successul workers, uninended

correlaions can emerge ha negaively impac candidaes.90For example, use o cerain sofware programs migh be more common or

younger workers ye no necessary or cerain jobs under consideraion. I may be ha workers who have six monhs o prior unemploymen

as a group are less desirable, bu using such a crierion could adversely impac minoriies. Te lis o ways a robo or a sofware program could

evaluae a job candidae or exising employee needs o be reviewed o make cerain ha disparae impac is no occurring, or i i is, ha i is

jusified by legiimae business requiremens. Tis secion discusses he relevan ani-discriminaion saues a issue, and suggess pracicarecommendaions or avoiding discriminaion claims as he unsoppable roboics revoluion eners he workplace.

1. Age Discrimination in Employment Act (ADEA)

Te ADEA91prohibis discriminaion agains applicans or employees age 40 or over because o age. Te ADEA also prohibis employers

rom discriminaing on he basis o age beween wo individuals, boh o whom are wihin he proeced age group. For example, i is a

violaion o he ADEA or an employer o hire a 45-year-old applican as opposed o a 65-year-old applican on he basis o he difference in

age beween hem.

Te ADEA prohibis discriminaion in hiring, discharge, promoion, and oher erms or condiions o employmen. A plainiff

esablishes a case o age discriminaion by demonsraing ha:

Te plainiff was in a proeced age group;

Te plainiff was qualified;

Te plainiff was neverheless adversely affeced; and

Te deendan sough someone else wih similar qualificaions o perorm he work.

In addiion, he U.S. Supreme Cour ruled in Smih v. Ciy o Jakon92ha workers age 40 and older may prove discriminaion under

he ADEA using a disparae impac heory. Prior o he holding, an individual could only obain recovery under he ADEA by claiming

he employer had an ineno discriminae. Disparae impac occurs when a companys acially neural policy has an adverse effec upon a

proeced group.


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wo issues presen hemselves when employers inroduce advanced roboic sysems ino he workplace. Firs, are he roboic sysems

pre-programmed so ha hey uncion in a discriminaory manner? Second, does using an advanced roboic sysem have a disparae impac

on hose employees who are 40 and older?

Wih regard o he firs quesion, i an employer uses robos pre-programmed o discriminae based on age, hen he employer could

ace exposure under he ADEA. For example, i an employer uses an advanced roboic sysem o conduc is hiring, a robo pre-programmed

o seek ou younger applicanssuch as soring applicans by graduaion daecould violae he ADEA. Depending on he progression oechnology and he needs o he markeplace, employers may have he opion o purchasing pre-programmed advanced roboic sysems or

o programming he sysems hemselves. In eiher case, employers should be vigilan in undersanding how heir advanced roboic sysems

are designed o behave.

o he second issue, he very use o advanced roboic sysems in he workplace could subjec an employer o exposure under he

ADEA. I hose 40 or older are adversely impaced because o an employers use o advanced roboics sysems, hen he employer may ace

exposure under he ADEA. For example, hose employees who are 40 or older may no have he echnological skills o operae and work

wih advanced roboic sysems. Employers should hereore ake a closer look a wheher he advanced roboic sysems require raining or

programming skills disproporionaely held by younger workers.

o minimize risk, employers can provide raining programs o equip heir workorce wih he necessary skills o work alongside and

wih advanced roboic sysems. I is imporan o noe ha in providing raining, employers should no assume employees who are 40 or

older do no have he echnical skills necessary. Moreover, employers should documen employees who decline he raining despie having

he capabiliy o acquiring necessary skills. ogeher, his will allow employers o assess he impac o he raining programs wih he goal o

avoiding a disparae impac agains older workers.

2. The Americans with Disabilities Act of 1990

ile I o he Americans wih Disabiliies Ac o 1990 (ADA),93amended by he ADA Amendmens Ac o 2008 (ADAAA),94prohibis

boh public and privae employers rom discriminaing in employmen agains persons wih physical and menal disabiliies. Te ADA

requires employers o make reasonable accommodaion o he needs o disabled applicans and employees, as long as such accommodaion

does no resul in undue hardship o he employers operaions. A reasonable accommodaion may include any o he ollowing:

Making exising aciliies used by employees readily accessible o and usable by individuals wih disabiliies;

Job resrucuring; Par-ime or modified work schedules;

eassigning a disabled individual o a vacan posiion;

Acquiring or modiy ing equipmen or devices;

Appropriaely adjusing or modiying examinaions, raining maerials, or policies;

Providing qualified readers or inerpreers;

Hiring a job coach o help he employee in his or her job or a emporary period o ime; and

Oher similar accommodaions or individuals wih disabiliies.

Te duy o make reasonable accommodaions exends o: he applicaion process; on-he-job raining, wheher offered direcly by he

employer or hrough a vendor or consulan; he employees abiliy o enjoy employer-sponsored social aciviies; and oher condiions oemploymen no sricly relaed o he abiliy o perorm he job.

a. Can a Robot Become a Legally Required Reasonable Accommodation for a Disabled Worker?

Yes. oday, cours may consider accommodaions or cerain individuals an undue hardship o an employers operaions. In he

oreseeable uure, advanced roboic sysems may make such accommodaions reasonable in he eyes o he cour. Advanced echnologies

could provide never-beore-seen opporuniies or individuals wih disabiliies. For example, sel-driving vehicles and advanced sensory

echnology could make jobs previously denied o dea or blind applicans a real opporuniy. Moreover, advanced echnologies could make


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already exising echnology affordable and more accessible. oboic arms or legs are already allowing individuals wih physical disabiliies o

operae wihou physical resricions.

Because an employee does no have o specifically reques an effecive accommodaion o invoke he employers obligaion o

accommodae, employers could risk exposure wih he impending roboics revoluion. o minimize risk, employers should say ahead o he

curve by researching and saying apprised o new and affordable echnologies.

For example, he use o roboic exoskeleons, or wearable robos, o enable disabled employees o perorm heir job uncions could besignifican. Wearable robos have already been developed oamong oher uncionsboos arm srengh,95aid in heavy lifing,96and even

help hose unable o walk.97In addiion, as is discussed elsewhere in his epor, by reducing workplace injuries, roboic exoskeleons may

evenually resul in lower insances o workers compensaion claims. Wheher roboic exoskeleons could one day be used as reasonable

accommodaions or disabled employees or wheher doing so would consiue an undue hardship on he employer will likely depend on

cos o he device, size o he operaion, and pracicaliy o use, among oher acors.

b. Can Sensor Technology Provide Employers With Personal Information During the Hiring Process that Violates the ADA?

Te ADA prohibis an employer rom making cerain inquiries and conducing medical examinaions beore making an offer o

employmen. Congress inended o resric employer effors o uncover hidden disabiliies. 98Wih his congressional inen in mind, an

advanced roboics sysem ha can deec disabiliies or healh condiions ha are hidden may violae he ADA. Sill, a job offer may be

condiioned upon successul compleion o a medical examinaion i he inormaion is job-relaed and consisen wih business necessiy.Also, according o he Equal Employmen Opporuniy Commission (EEOC) guidelines,99an employer may ask limied quesions

concerning reasonable accommodaion i:

Te employer reasonably believes he applican will need a reasonable accommodaion because o an obvious disabiliy;

Te employer reasonably believes he applican will need reasonable accommodaion because o a hidden disabiliy ha he applican

has volunary disclosed o he employer; or

Te applican has volunarily disclosed o he employer ha he or she needs reasonable accommodaion o perorm he job.

Can a robo be asked wih he challenge o deermining wheher an applican will need a reasonable accommodaion? I is clear Congres

did no wrie he ADA aking ino consideraion ha an advanced roboic sysem could conduc inerviews, or example. Tereore, i is

difficul o deermine wha consiues an employers belie i an advanced roboic sysem is acing on an employers behal. An employerha chooses o use an advanced roboic sysem in he inerviewing process should ensure ha he sysem inquires only abou a disabiliy

ha would be obvious o a human.

3. Title VII/National Origin Issues

Several ederal laws prohibi discriminaion based on race, including ile VII o he Civil ighs Ac o 1964 and he Civil ighs Acs

o 1866 and 1871. Tese laws prohibi employers rom using an individuals race or oher proeced caegory as a basis or any employmen

decision. Moreover, ile VII100prohibis discriminaion based on naional origin.

Te Supreme Cour has ruled ha ile VII prohibis no only over discriminaion bu also employmen pracices ha appear

neural bu are discriminaory in operaion. Te plainiff presens a case o discriminaion by showing ha a neural policy has a harsher or

adverse impac on a proeced class (e.g., Hispanics, Asians, women, ec.). Te adverse impac analysis has been uilized regarding objecive

employmen crieria such as sandardized ess.

a. Are There Unintended Disparate Impacts on Legally Protected Categories of Employees from the Use of Robots?

Tere could be. Pre-programmed or employer-programmed roboic sysems could operae wih inheren biases or limiaions. For

example, echnology ha operaes by voice commands could presen challenges or individuals who do no speak English as heir firs

language. Employers could minimize heir exposure by cusomizing advanced roboic sysems o mee such challenges. In addiion, employers

can provide argeed raining o employees in a proeced class in order o miigae such challenges.In providing raining, employers should

documen employees who decline he raining despie having he capabiliy o acquiring necessary skills. Tis will allow employers o assess

he impac o he raining programs wih he goal o avoiding a disparae impac agains legally proeced caegories o employees.


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4. Other Protected Categories: Are There Unintended Disparate Impacts from the use of Robots on Other Legally Protected Categories?

a. Unemployment as a Protected Status

Early in 2011, he EEOC conduced legislaive hearings on wheher he unemployed could be considered a proeced class under

ile VII. In he same year, members o he Senae and House o epresenaives firs inroduced he Fair Employmen Opporuniy Ac

o 2011,101which was recenly re-inroduced in January 2014. Tis bill would make i an unlawul employmen pracice or an employer

o deny employmen based on an applicans employmen saus. Federally, no regulaions or laws have ye been enaced o make his arequiremen or employers. However, some saes and he Disric o

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