Workplace AI – Presidential Change and Unknown Expectations for Retail Employers

The use of Artificial Intelligence (“AI”) in the workplace has spread rapidly since President Trump left the White House in early 2021.  In recent years, retail employers have started using AI technology in a variety of ways from automating tasks, to implementing data-driven decision making, to enhancing customer experience.  Though the Biden administration started to grapple with the use of AI in the workplace, the second Trump administration could mark a dramatic shift in the federal government’s response to these issues.

The Biden administration took a somewhat cautious approach to the proliferation of AI in the workplace.  In response to criticism, including the possibility of AI technology allegedly  exhibiting implicit biases in hiring decisions, President Biden issued an executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” which established parameters for AI usage and directed federal agencies to take steps to protect workers and consumers from the potential harms of AI.

President Trump repealed the Biden Executive order on January 23, 2025, but has not yet implemented his own policy. The Trump Executive Order directs the Assistant to the President for Science and Technology and other administration officials to develop an “Artificial Intelligence Action Plan” within 180 days of the order to advance the administration’s policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The specifics of the “Artificial Intelligence Action Plan” remain unclear. President Trump signed an executive order regarding AI during his first term in 2019 which encouraged AI research and implementation, however, the technology has since developed rapidly. Given the Executive Order’s statement that previous government action constituted “barriers to American AI innovation” it is likely the “Artificial Intelligence Action Plan” will promote the development and use of AI rather than create new red tape for employers.

In the wake of the Trump Executive order, federal agencies  have taken down the limited guidance regarding the use of AI in the workplace they had released during the Biden administration. The Equal Employment Opportunity Commission (“EEOC”), for example, released guidance documents outlining the ways in which AI tools in the workplace could violate the ADA or Title VII of the Civil Rights Act, particularly with respect to hiring.  The Department of Labor also issued guidance addressing wage and hour issues related to AI and laying out best practices for implementing these tools to ensure transparency in AI use and support workers who are impacted by AI. Both these documents have been pulled from their respective agencies’ websites.

President Trump’s decision to appoint David Sacks as an “AI & Crypto Czar” also signals what retail employers can expect from the administration moving forward. Sacks is an entrepreneur and venture capitalist who has espoused pro-industry stances on his podcast, “All-In.” He also has a personal stake in AI being utilized as employers as the owner of “Glue” a software program that integrates AI into work place chats as a rival to platforms like Slack or Teams.

If the federal government does not regulate AI’s use in the workplace, states may attempt fill this vacuum of regulation with legislation addressing emerging issues or counteracting the Trump administration’s actions. This could lead to a patchwork of different compliance standards for employers from state to state. New York City’s Local Law 144 creates obligations for employers including conducting bias audits where automated tools play a predominant role in hiring decisions.  Illinois has prohibited employers from using AI in a manner that causes a discriminatory effect.  Other states may further complicate this landscape in attempts to correct perceived issues with the use of AI in the workplace. 

While President Trump’s stance encourages the use of AI, retail employers should remember that existing anti-discrimination statutes may still provide a vehicle to challenge employers’ use of AI. For example, if AI used in hiring disadvantages a certain race, the employer could still face liability under Title VII. Retail employers should be on the look-out for further actions from the Trump administration and developments regarding AI in the coming year.