As artificial intelligence (AI) continues to transform the workplace, lawmakers and agencies are grappling with how to regulate its use in employment settings, from hiring practices to employee monitoring. The next administration’s approach to AI regulation will help shape the balance between innovation and worker protection, with each political party offering distinct views on the role of government oversight. A shift in power could lead to changes in how the U.S. Department of Labor (DOL), the U.S. Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) address AI’s growing influence in the workplace, affecting compliance requirements for employers nationwide.          

A Harris Administration

A Harris administration would be expected to continue the Biden administration’s overall approach to regulating AI. As a candidate in 2020, President Biden regularly stated that he would be the most pro-union president in history and would make increased unionization a top priority of the current administration. As a result, in the labor and employment context, the Biden administration has prioritized addressing AI if it is being used for anti-union purposes or to displace workers. This approach to regulating AI has involved executive orders, interagency agreements, and individual agency actions. A Harris administration would likely build on these efforts, and Vice President Harris’ selection of Minnesota Governor Tim Walz as her running mate suggests that she will continue a pro-labor union agenda that will permeate any AI regulatory efforts.¹

Vice President Harris, as a former U.S. Senator of California and the state’s former attorney general, could be more inclined to take a proactive approach to regulating AI in line with the AI legislative proposals in her home state. At the same time, the Harris administration may focus on building on the Biden administration’s focus on getting voluntary agreements from major tech companies to address AI based on her California background and connections. The Biden administration has largely focused its efforts on getting voluntary agreements from major tech companies to address AI and a Harris administration would certainly build on this approach.

A Trump Administration

A Trump administration would be expected to reverse most of the Biden administration’s AI regulatory efforts regarding the workplace, especially any measures that might be viewed as stifling innovation or which purport to limit “free speech,” or are overtly pro-union. Most notably, a Trump administration would likely repeal the Biden administration’s executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” issued on October 30, 2023, because of concerns that it stifles innovation. The AI executive order gave broad directives to a wide variety of federal agencies to address AI. The Trump administration would also likely withdraw the Blueprint for an “AI Bill of Rights,” which addressed the possibility of employers using technologies for anti-union purposes.

A Trump administration would also be more likely to work with and engage tech companies in the development of any AI regulatory policies.  

At the federal agency level, a Trump administration could withdraw certain AI guidance documents issued during the Biden administration. For instance, a Trump administration would likely repeal the NLRB’s general counsel memorandum that warns employers that using electronic surveillance and automated management technologies presumptively violates employee rights under the National Labor Relations Act. Other AI guidance issued by agencies would also likely be withdrawn. For example, DOL’s Wage and Hour Division (WHD) issued AI guidance via a Field Assistance Bulletin (FAB) in April of 2024. The FAB notes that “employers have reportedly created systems to predict the likelihood that particular locations will unionize based on employee surveys and data analytics.” The FAB also states in a footnote that “[t]he use of electronic monitoring or AI systems to identify organizing activity may raise compliance challenges under the National Labor Relations Act” and cites the NLRB general counsel’s memorandum mentioned earlier. WHD does not enforce the National Labor Relations Act, however, nor has it entered into an interagency agreement on AI with the NLRB. For these reasons, WHD’s FAB is expected to be withdrawn. A Trump administration would likely address AI-related wage and hour concerns through opinion letters. An opinion letter is an official written opinion from an agency on how a statute, its implementing regulations, and related case law apply to a specific situation presented by the person or entity requesting the opinion. DOL’s Office of Federal Contract Compliance Programs in a Trump administration may also issue opinion letters to address certain AI risks.

A Trump administration’s immediate impact on federal agencies’ AI regulations may be limited since Democrats will likely continue to have a majority on the EEOC and NLRB for a significant portion of his administration.

Regardless of the outcome of the election, recent history suggests that federal agencies may move cautiously in regulating AI. The EEOC has not issued any AI guidance in about a year and a half. Meanwhile, the NLRB has not issued any guidance in two years. In addition, the Supreme Court’s recent Loper Bright decision will undoubtedly impact AI regulatory efforts regardless of the outcome of the presidential election.² In a dissenting opinion, Justice Elena Kagan specifically cited rules regulating AI as an illustration of a specific regulatory area now in jeopardy.

States

While the presidential election will shape federal policies, its overall impact on regulating AI may be minor because most AI regulatory efforts are occurring at the state level. States have been more proactive in developing laws around AI use, particularly in employment contexts. State governments are implementing a range of regulations, and these frameworks are expected to continue evolving regardless of the next administration. As a result, businesses will likely face varying AI regulations across states, reducing the immediate influence of federal policy changes driven by the presidential election.

Conclusion

Overall, the United States has so far adopted a light-handed approach to regulating AI in the labor and employment area. The U.S. approach is also frequently described as more decentralized, meaning that AI regulation is increasingly occurring at a more localized level. Thus, the presidential election itself is unlikely to have as dramatic an impact on AI regulations as it may on other labor and employment matters, and a light-handed approach to regulating AI will almost certainly continue regardless of who wins the election.