The OFCCP’s AI Guidance for Federal Contractors (and Private Employers?)


In addition to the U.S. Department of Labor’s AI guidance for employers discussed elsewhere in this E-Update, the DOL’s Office of Federal Contract Compliance Programs released Artificial Intelligence and Equal Employment Opportunity for Federal Contractors guidance specifically for federal contractors and subcontractors – but which contains useful tips for all employers.

The OFCCP’s guidance is part of a new AI landing page. In the guidance, the OFCCP explains in detail how AI technologies are implicated in a federal contractor’s compliance efforts. The guidance notes that contractors are required to maintain certain records (which may have been created in the context of using AI), to provide information on AI systems to the OFCCP upon request, and to make reasonable accommodations for individual with disabilities, including with regard to the use of automated systems. The OFCCP further notes that selection procedures, including those relying on AI, may need to be validated in accordance with the Uniform Guidelines on Employee Selection Procedures. The OFCCP also identifies certain risks of AI, including embedded bias within automated systems. The agency warns that it will investigate the use of AI as part of its compliance evaluations and complaint investigations.

Of particular interest to all employers, the OFCCP identifies certain “promising practices” in connection with the use of AI. These include the following categories:

  • Providing notice that the employer is using AI. This includes: providing advance notice and appropriate disclosures about the use of AI in the hiring process or employment decisions; identifying what data is being captured and used and how applicants/employees can review/correct/delete such data; informing applicants how to request reasonable accommodations in the hiring process; and implementing and describing safeguards for privacy.
  • Use of an AI System. The OFCCP suggests the following: engaging with employees (and their representatives – i.e. unions) in the design, deployment and use of AI systems for employment decisions; standardizing the systems to ensure all applicants go through the same process and establishing procedures for requesting reasonable accommodations; regularly monitoring and analyzing the systems for disparate or adverse impact; ensuring meaningful human oversight; and providing training on the use of AI systems.
  • Obtaining a Vendor-Created AI System. Suggested practices include the following: ensuring the vendor maintains records consistent with OFCCP requirements; ensuring the source and quality of data being collected and used; confirming vendor protections and privacy for contractor data; verifying the criteria used to filter and prioritize candidates; identifying differences between the data used in the creation of the AI system and that of the contractor; ensuring that selection processes are validated; ensuring the reliability and safety of the system, as well as the transparency and explainability of the system; verifying results of any assessment of system bias.
  • Accessibility and Disability Inclusion. Many of these practices overlap with others, but some additional suggestions include: using a system that is generally accessible to those with disabilities; and if using a vendor, ensuring that they considered the needs of those with disabilities in the development and application of the system to ensure access and equal employment opportunity.