On October 30, 2023, President Biden issued an “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” (the “EO”), the first executive order directly addressing artificial intelligence.

Of particular interest to federal government contractors, the EO provides that within 365 days of publication, “to prevent unlawful discrimination from AI used for hiring, the Secretary of Labor shall publish guidance for Federal contractors regarding nondiscrimination in hiring involving AI and other technology-based hiring systems.”  This development follows the publication of OFCCP’s new scheduling letter and itemized listing, which now requires contractors to “[i]dentify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”

In addition, within 150 days of the date of the EO, the Director of the Office of Management and Budget (“OMB”) will issue guidance to federal agencies on “maximizing the value to agencies when relying on contractors to use and enrich Federal Government data for the purposes of AI development and operation.” Within 180 days of issuing this initial guidance, the Director of OMB will “develop” further guidance “to ensure that agency contracts for the acquisition of AI systems and services align with the” EO and address protection of government information, privacy, and civil rights as outlined in section 7224(d)(1) of the Advancing American AI Act.

Also, within 180 days of the EO’s publication, the Secretary of Health and Human Services (HHS) must “consider appropriate actions to advance the prompt understanding of, and compliance with, Federal nondiscrimination laws” by HHS providers that receive Federal financial assistance, “as well as how those laws relate to AI,” such as by issuing guidance or technical assistance to HHS providers.

FAQs on the EO can be found here. We will continue to monitor and report on AI developments affecting federal contractors and subcontractors.

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Olympia Karageorgiou Olympia Karageorgiou

Olympia Karageorgiou is a law clerk in the Labor Department and a member of the Employment Litigation & Artbitration Group.