As Robots Evolve the Workforce, Will Labor Laws Keep Pace?

ekso-bionics-exoskeletonEvery day, robots pop up in more workplaces. Employers in industries from health care to food service are drawn to automation technology by the promise of greater productivity and lower costs. Up to half of the jobs in the United States could be rendered moot in coming years by quickly improving robotics technology, according to an Oxford University study.

Already, a number of manual workforces are using exoskeletons, notably those made by Ekso Bionics, to enable workers to safely perform more strenuous tasks. (Ekso mostly publicizes its devices medical uses, but it is a big player in industrial settings, too.)

White-collar workplaces have introduced robots, as well. Robots have even entered the operating room, helping doctors perform difficult surgeries. In some hospitals, robots move supplies and fill prescriptions. And one robot, Sedasys, replaces anesthesiologists during colonoscopies. (Katie Couric didn’t show us that part!) At some companies, a job candidate might interview with Sophie (or PaPeRo in her native Japan), a human resources interviewing robot designed to measure interviewees’ psychological responses along with their spoken answers.

In other words, humans aren’t just being replaced by robots, particularly as job descriptions adapt to new divisions of labor: A growing number will find themselves working alongside the droids.

In some cases, the robots create new jobs beyond those of the engineers who build them. For example, the International Federation of Robotics estimates that robots had, at the end of 2011, indirectly created roughly 4 million jobs.

Human staff and robots working side by side nevertheless raises some thorny legal issues. The workplace is a highly regulated space even in the laissez-faire United States, but automation is too new to have any explicit regulations on its use there. That gap has not gone unnoticed by the large employment law firm Littler Mendelson, which recently organized a conference and published a white paper guiding employers on the potential legal issues they will face as they build out their robotic staffs.

“[B]oth the developers of advanced robotics and the users of this essential technology need to anticipate and avoid legal landmines that threaten to explode as work and the workplace change,” the report cautions.

To be sure, Littler has a vested interest in warning of the potential for lawsuits. Still, a few issues in its comprehensive analysis of the troubles that next-gen robots could stir up seem to raise important questions about how best to make the shift to an automated workplace.

First, there’s injury. Many robotics makers are, for their part, working on how to design mobile machines to avoid or minimize collisions with humans. Still, there have already been several worker deaths related to robots, according to the Littler report. Two of them involved workers who needed to enter a robot’s established work area.

U.S. labor law generally does not allow workers to sue third parties for injuries sustained on the job, so the employer, not the manufacturer, would likely be liable for these and lesser injuries, according to Littler. That puts the burden on the company buying a robot to verify the manufacturer’s claims about the product before putting it to work — no small burden when the technology is so new.

Even the exoskeletons that designed to reduce worker injuries by supporting repeated moving and lifting could have the reverse effect, the report notes. After the devices have been used for a while, the employer’s expectations for how much work gets done in a day would likely rise.

“Certainly, as the use of such robots enhances workers’ physical capabilities, employers are likely to ratchet up their expectations and demands that workers perform more work, improve efficiency, and perform more physically demanding and dangerous tasks. If not carefully monitored, the benefit of robotics could be lost as the injury rate keeps pace with these heightened expectations and demands,” the report concludes.

And again there’s a chance of a substandard design, which, instead of supporting an ergonomically correct movement, forces workers into less than ideal postures. The employer would still likely be legally responsible.

Another interesting question raised by the paper: Could artificial intelligence be racist or ageist?

“Behavioral analysis and other forms of data acquired by robots could have a disparate impact on protected categories. When behavioral data is collected and compared to similar data about successful workers, unintended correlations can emerge that negatively impact candidates,” the report warns.

sophie-hr-robotUsed in human resources, algorithms sift through resumes to find the best-qualified candidates. If the algorithm was biased against particular characteristics related to age, race, sex or any other protected category, it would run afoul of labor law. But the bias could be an unintended side effect of prioritizing “role” over “position” or some other seemingly innocent decision.

Human resource robots, like Sophie, could inadvertently discriminate against a protected class if that class were more likely to experience particular physiological responses during an interview. A middle-aged woman experiencing a hot flash, for instance, could potentially be mistaken for someone experiencing anger or fear.

Employees with disabilities raise yet another issue. The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to support workers with disabilities in doing their jobs. For instance, a visually impaired person could work in an office job using voice recognition software.

Could robots become “reasonable accommodations”? Yes, according to Littler, if there were a robot available at a reasonable price point to do what the employee needed done. Disabled employees are entitled to accommodation whether or not they specifically ask for it, which means all major employers may have to stay abreast of what contemporary robots can do and how much they cost. (Perhaps one of the human jobs that the industry is creating is robotics compliance officer.)

So companies facing economic incentives to invest in automation should also vet the potential costs of integrating them without running afoul of labor laws. And employees increasingly working with robots will likely see another round of scrutiny and potentially regulation related to the traditionally sticky issues of safety and non-discrimination.

Photos: Ekso Bionics, NEC

Cameron Scott
Cameron Scott
Cameron received degrees in Comparative Literature from Princeton and Cornell universities. He has worked at Mother Jones, SFGate and IDG News Service and been published in California Lawyer and SF Weekly. He lives, predictably, in SF.
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