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By: Karen Y. Cho MORGAN, LEWIS & BOCKIUS LLP
It is indisputable that technology is dramatically changing the way we live in the 21st century and will continue to play an even greater role. The Pew Research Institute’s 2014 Future of the Internet survey uncovered wide agreement that robotics and artificial intelligence will permeate most aspects of daily life by 2025, including health care, transportation, customer service, and home maintenance.1 Yet when it comes to the workforce, experts disagree as to whether technology will ultimately create or displace more jobs.
OF THE 1,896 EXPERTS SURVEYED BY THE PEW RESEARCH Institute, 48% envisioned a future in which robots and related technologies displaced blue- and white-collar workers, leading to further income inequality and unemployment.2 However, 52% of experts responded that even if robots took over human jobs, technology would lead to the creation of new jobs and industries.3 Other studies have painted a similar picture, such as Oxford’s 2013 study, which indicated that 47% of American jobs are at “high risk” of being taken over by computers in the next 10 to 20 years.4 Experts indicate that industries hit the hardest may include automotive, manufacturing, and food services.5
Even though the full impact of robotics and automation on the workplace may be unknown, one thing is certain—employers should be aware of potential legal landmines and start planning now. This article focuses on areas of employment law that may see the biggest impact and key issues employers should consider when integrating these new technologies.
Robotics and automation are beginning to impact a wide swath of industries. Self-driving vehicles from cars to autonomous electric long-haul tractor trailers continue to receive widespread coverage. Many transportation companies and automobile manufacturers are committing significant resources to developing and rolling out these technologies. Last year the White House predicted that automation may eventually replace 1.3 to 1.7 million heavy and tractor-trailer truck-driving jobs.6 Manufacturing is another area where workers are already commonly working beside robots and automated technology. Retailers even use robots to quickly and efficiently fulfill and ship online orders.7
But robots are not just taking on manual labor and manufacturing roles; they are also performing human resource-related tasks, such as conducting job interviews and acting as customer service representatives.8 The medical field has also seen an influx of robots performing neurological, orthopedic, and general surgery—and even reducing surgical complications by up to 80%.9 Without question, robotics and automated technology are permeating many industries, and they will continue to do so in the years to come.
Ongoing technological developments in areas such as robotics and automation could have a potentially significant impact on several areas of labor and employment law. In some ways, these technologies may improve opportunities for individuals in the workforce, but they also may lead to widespread displacement of certain workers and new areas of liability.
Wage and Hour
Several areas of wage and hour law are likely to be impacted by technological advancements in robotics. With the incorporation of robots, more employees may be able to perform their jobs remotely through telemanipulation. Employees may perform jobs by controlling robots or automated systems from different rooms, worksites, states, or even countries than where the robot is physically located. However, when workers perform their jobs remotely there can be wage and hour consequences. Most employees in the United States are covered by federal employment laws, such as the Fair Labor Standards Act10, in addition to the wage and hour laws implemented by many states and municipalities. Generally, the law of the state where the work is performed applies. For example, the California Supreme Court has held that even when an employee may live and work primarily out of state, California’s wage and hour laws may apply when the employee performs work within the state for an entire day.11 Employers may now have to ensure compliance with employment laws in additional, or even multiple, jurisdictions for the same employee within a given pay period. If employees travel consistently and work remotely, this could further complicate the application of employment laws. As remote work trends develop, perhaps an argument can be made that the location of the robot is where the physical work is actually being performed.
These technologies will also likely create jobs where employees have substantial downtime (e.g., an employee simply oversees a robot performing its job and only has to respond when an error occurs.) In theory, remote employment could substantially reduce the amount of compensable time worked by eliminating the obligation to compensate employees for down-time formerly spent at the workplace. However, under current employment laws, like the California Labor Code, oncall time may still be compensable depending on the amount of control the employer exerts over the employee’s ability to engage in personal activities.12
The main concern for most individuals in the workforce is the potential displacement of jobs by robots and automation. While employers are not prohibited from redesigning their workforce to eliminate human jobs, employers should plan for and take appropriate steps to ensure a smooth transition. For example, where human jobs have been eliminated, employers could provide severance agreements in exchange for releases from employees who are affected by a reduction in force (RIF) or retrain employees for alternative positions within the company. For employers with more than 100 employees, replacing the workforce with robots may trigger legal obligations under the Worker Adjustment and Retraining Notification Act (WARN Act).13 Under the WARN Act, certain employers may be required to provide 60 days' advance notice to employees, union representatives, and state and local government officials if they decide to (1) close a plant that would result in a loss of 50 or more employees during a 30- day period; or (2) institute a mass layoff at a site that would result in a loss of 500 or more employees (or in the case of 50 to 499 employees, if 33% of the active workforce is affected). In addition, some states, such as California, have a state WARN Act with which an employer may have to comply.14
Mass layoffs may also have an unintended consequence on a protected group of individuals. Courts recognize two separate theories of discrimination in the workplace: disparate treatment and disparate impact. The traditional understanding of discrimination that is familiar to most lay persons is the disparate treatment theory, where an employer intentionally discriminates against an employee on the basis of a protected characteristic, such as the employee’s race, sexual orientation, gender, disability, age, religion, etc. However, even when an employer has no discriminatory animus, there is a danger that the policies, practices, rules, or other systems used in a RIF may appear innocuous or neutral on their face, but result in a disproportionate impact on a protected group. A reduction in force that disproportionately impacts a protected group, such as older workers or women—two groups that have historically been underrepresented in the technology and engineering field—may lead to disparate impact discrimination claims on either individual or class action bases.
Accommodations for Employees with Disabilities
Under the Americans with Disabilities Act,15 employers are required to provide reasonable accommodations to qualified employees with disabilities.16 Generally, this means providing an accommodation that does not cause an undue hardship to the employer’s operations.17 With the introduction of advanced robotic systems and related technologies, there may be a significant increase in the number and types of jobs that persons with disabilities will be able to perform. In addition, we are likely to see the idea of what accommodations are reasonable evolve over time. Robotics and automation will probably become more affordable as they become the norm, thus expanding the reasonable accommodation options for employees and making some undue hardship defenses less viable for employers. For example, in the foreseeable future, it may be a reasonable accommodation for an employer to provide employees who are confined to a wheelchair or have lifting restrictions with exoskeletons that will assist them with performing manual operations. Thus, an employer’s obligation to engage in an interactive discussion may include the consideration of expanded accommodation options inspired by creative new technologies.
Health and Safety
The federal Occupation Safety & Health Act (OSHA),18 as well as some equivalent state statutes—such as the California Occupational Safety and Health Act of 197319—dictate health and safety standards for workplaces. Currently, OSHA does not have any standards that specifically target robotics and automation in the workplace.20 One concern is that workers performing their jobs alongside robotic systems could be injured by the system itself or by human error. Whereas heavy robots used to typically do their work within a safety cage, companies are more commonly using collaborative, lightweight robots that work alongside their human counterparts. Such proximity may increase the physical interaction between workers and machines.21 As companies incorporate these technologies, they should ensure appropriate safety mechanisms and training programs are in place, including presence or proximity detectors that halt all robotic motion when they detect the presence of body parts or other objects in close proximity to the robot or to moving or otherwise hazardous parts. Additionally, experts actually report a positive impact on safety due to robotics—the increase in automation has actually led to the fall of workplace fatality rates.22 Robots and automation may also be used to protect workers from repetitive stress injuries or to improve ergonomics.
Robotic technology, which was once just the stuff of science fiction, is closer to reality than many people may realize. Recent booms in development, such as improvements in cloud computing, sensor technology, and data analytics, coupled with falling prices, have led to exponential growth in robotics, automation, and artificial intelligence. Employers in all industries should start planning now.
Human Resources and Legal Impact
As companies incorporate robotics and automation into their labor pools, they should involve their human resources and legal departments to consider potential areas of risk or liability. Human resource and legal professionals can help strategize how to overcome potential workplace issues and implement policies and procedures to reduce risk. Companies at the forefront of this new technological revolution may also consider working to shape the development of legislation and related regulations.
Training and Workforce Displacement
Employers should also consider taking proactive steps to plan for potential workforce displacement events. For example, employers may develop training programs to help workers develop complementary skills and knowledge or move into different roles that are not being automated.
Despite the unique workplace issues created by technological advancements, employers who are proactive will likely see positive impacts on their business as a result of robotics and related technologies.
Karen Y. Cho represents management in all types of employment disputes at Morgan, Lewis & Bockius LLP in San Francisco. She defends and counsels employers including wage and hour class actions; Private Attorneys General Act representative actions; and single or multi-plaintiff discrimination, harassment, wrongful termination, and breach of contract disputes. She may be reached at email@example.com.
RESEARCH PATH: Labor and Employment > Privacy, Technology and Social Media > Policies and Procedures > Articles
For an explanation on which employers must comply with the Fair Labor Standards Act, which employees are covered by the law, and the most common exclusions from coverage, see
> WHICH EMPLOYERS MUST COMPLY WITH THE FLSA AND WHICH WORKERS ARE COVERED?
RESEARCH PATH: Labor & Employment > Wage and Hour > FLSA Requirements and Exemptions > Practice Notes
For a discussion on the steps an employer should take when implementing a reduction in force and to comply with the federal Worker Adjustment and Retraining Notification Act (WARN), see
> IMPLEMENTING A REDUCTION IN FORCE AND COMPLYING WITH WARN
RESEARCH PATH: Labor & Employment > Investigations, Discipline, and Terminations > Discharge and Layoffs/RIFs > Practice Notes
For more information on disparate treatment and disparate impact discrimination claims, see
> UNDERSTANDING DISPARATE TREATMENT
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes
> NAVIGATING DISPARATE IMPACT CLAIMS
For a detailed overview of the Americans with Disabilities Act and its requirement to provide reasonable accommodations to qualified employees with disabilities, see
> AMERICANS WITH DISABILITIES ACT: NAVIGATING EMPLOYER REQUIREMENTS AND MAKING REASONABLE ACCOMMODATIONS
RESEARCH PATH: Labor & Employment > Attendance, Leaves, and Disabilities > The ADA and Disability Management > Practice Notes
For guidance on complying with Occupational Safety and Health Act, see
> NAVIGATING OSH ACT REQUIREMENTS, INSPECTIONS, CITATIONS, AND DEFENSES
RESEARCH PATH: Labor & Employment > Workplace Safety and Health > Occupational Safety and Health Act > Practice Notes
1. Aaron Smith & Janna Anderson, AI, Robotics, and the Future of Jobs, Pew Research Center (August 6, 2014), available at http://www.pewinternet.org/2014/08/06/future-of-jobs/. 2. Smith, et al., supra note 1. 3. Smith, et al., supra note 1. 4. Carl Benedikt Frey & Michael A. Osborne, The Future of Employment: How Susceptible Are Jobs to Computerisation? University of Oxford (Sept. 17, 2013), available at http://www.oxfordmartin.ox.ac.uk/downloads/academic/The_Future_of_Employment.pdf. 5. Christie Nicholson, Our Rising Robot Overlords: What Is Driving the Coming Upheaval (August 24, 2011), available at http://www.zdnet.com/article/our-rising-robot-overlords-what-is-driving-the-coming-upheaval/. 6. Alana Semuels, When Robots Take Bad Jobs, The Atlantic (February 27, 2017), available at https://www.theatlantic.com/business/archive/2017/02/when-robots-take-bad-jobs/517953/. 7. Sam Shead, Amazon Now Has 45,000 Robots in its Warehouses, Business Insider (Jan. 3, 2017), available at http://www.businessinsider.com/amazons-robot-army-has-grown-by-50-2017-1. 8. See, e.g., Cameron Scott, As Robots Evolve the Workforce, Will Labor Laws Keep Pace? Singularity Hub (Mar. 16, 2014), available at https://singularityhub.com/2014/03/16/robots-entering-the-workforce-but-are-labor-laws-keeping-up/(discussing “Sophie” the human resources interviewing robot that measures interviewees’ “psychological responses” to questions, such as their eye movement, along with their verbal answers); see also News Release, Lowe’s Introduces LoweBot – The Next Generation Robot to Enhance the Home Improvement Shopping Experience in the Bay Area, PR Newswire (Aug. 30, 2016), available at http://www.prnewswire.com/ news-releases/lowes-introduces-lowebot---the-next-generation-robot-to-enhance-the-home-improvement-shopping-experience-in-the-bay-area-300319497.html (discussing Lowe’s new robot that can assist employees and customers by, for example, helping them locate products in the store). 9. Denise Johnson, The Impact of Robots Replacing Humans in the Workplace, Carrier Management (Aug. 27, 2015), available at http://www.carriermanagement.com/features/2015/08/27/144510.htm. 10. 29 U.S.C. § 201 et seq. 11. Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1206 (2011). 12. Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833, 840 (2015). 13. 29 U.S.C. § 2101 et seq. 14. See, e.g., California Worker Adjustment and Retraining Notification Act, Cal. Lab. Code § 1400 et seq. 15. 42 U.S.C. § 12101 et seq. 16. 42 U.S.C. § 12112 et seq. 17. 42 U.S.C. § 12112 et seq. 18. 29 U.S.C. § 651 et seq. 19. Cal. Lab. Code § 6300 et seq. 20. However, note that OSHA did issue such guidelines in 1987, which are now vastly outdated. See OSHA, Guidelines for Robotics Safety, Instruction Pub. No. STD 01-12-002 (PUB 8-1.3), (Sept. 21, 1987) (“OSHA Guidelines”), available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1703. In addition, Section IV: Chapter 4 of OSHA’s Technical Manual also addresses Industrial Robots and Robot System Safety (available at https://www.osha.gov/dts/osta/otm/otm_iv/otm_iv_4.html) and OSHA’s Concepts and Techniques of Machine Safeguarding, OSHA 3067 (1992) (Revised) contains a chapter on Robotics in the Workplace (available at https://www.osha.gov/Publications/Mach_SafeGuard/toc.html). 21. OSHA Guidelines, supra n.20, at App. A, sec. A-5. 22. OSHA Guidelines, supra n.20, at App. A, sec. A-2.