Vehicles are becoming more electrified and connected with one another, while the exponential growth and viability of artificial intelligence creates new pathways never before imagined. Meanwhile, society is becoming increasingly urbanized, and people are demanding immediacy and the convenience of shared means of transportation. Finally, as environmental, safety and economic factors impact our thinking and our everyday actions, it’s simply a question of if – not when – AVs will regularly populate our streets.
In some respects, the future is already here. Several states and local jurisdictions have already cleared AVs to be tested and driven on public roads. One of the industry leaders in this space – Google’s self-driving offshoot, Waymo – logged its 4 millionth mile of driverless road travel earlier this year. Meanwhile, Uber has reached 2 million such miles and Lyft has completed over 5,000 driverless rides in Las Vegas alone.
While there may be no disputing these facts, you still may be wondering how employers will be impacted and why you should care about these issues, especially if your business is not specifically in the AV industry. Our firm has just launched an Autonomous Vehicles Practice Group to help answer that question and address pertinent issues.
General employment law
Some people have described AVs as “offices on wheels,” and employees will soon be able to work on the move no matter how they commute to the workplace. This could present a whole new spectrum of wage and hour issues. Similarly, you will soon need to reconsider whether driving is “an essential function of the job” when providing accommodations and engaging in the interactive process with disabled employees. Employees who are unable to drive for medical or religious reasons may see AVs as potential accommodations, leading you to alter the way you conduct your HR practices.
Labor and collective bargaining
Once you utilize AVs to handle basic functions, you will be able to reduce the number of employees in driving occupations. If there is a unionized presence at your company, you will need to plan far ahead to address these reductions. Start negotiating terms in new collective bargaining agreements that will provide more flexibility when this change comes. Just as has occurred with automation in manufacturing, you must anticipate that the unions will fight these job losses.
Data privacy and cybersecurity
To ensure maximum safety, AVs will need to communicate with each other, the surrounding infrastructure and a host of third-party platforms. Data privacy and cybersecurity will continue to be a serious concern given widely recognized worries about hacking. Companies in the AV space and employers whose employees utilize connected vehicles will need to take certain steps to ensure compliance with federal and local laws.
First, identify applicable statutory and regulatory requirements to clearly understand your obligations. Then identify information vulnerable to a breach and prepare breach incident response plans to proactively address the worst-case scenario. As an added precaution, train managers and employees to spot and respond to data breach incidents.
As AVs become more prevalent in industrial settings, they will continue to impact your safety programs. AVs present unique safety concerns that must be addressed in order to avoid accidents and potential citations under OSHA’s machine-guarding standards and general duty clause. You will need to consult with lawyers and industry experts with experience and depth in this space to provide advice and identify unique safety concerns.
To achieve their full potential, AVs must communicate with the world around them. Vehicle-to-infrastructure (V2I) communication involves the exchange of safety and operational data between vehicles and the transportation infrastructure that supports them. Massive upgrades to infrastructure will be required, but state and federal governments lack the technical expertise to implement these changes. They will need to partner with the private sector.
Employers supporting this intensive infrastructure effort should consider the impact of contracting with government agencies that will subject them to Office of Federal Contract Compliance Programs (OFCCP) jurisdiction. You should also consider whether you will be providing supplies or services necessary to the performance of a federal contract such that you become a federal subcontractor under OFCCP’s jurisdiction, leading to a whole host of additional compliance challenges. Various state governments also impose affirmative action compliance requirements.
Finally, to the extent that you utilize the services of gig economy workers – any member of a contingent workforce connected to a certain job or task through a digital platform such as a smartphone app or computer program – you will need to ensure that your classification structures are up to date and compliant with the latest legal standards. The average gig worker is considered an independent contractor by the hiring entity helping to connect the person to his or her next task or willing consumer, but many workers are challenging such classification systems and claiming they are actually employees. You will need a thorough review of your business practices before you hit the road to assess whether you can employ a contractor model.
In short, autonomous vehicles, like all technological advancements before them, have the potential to drive employers crazy. Forward-thinking law firms can help firms rise to the challenge. Consider beginning to adapt now before the seismic changes start occurring.
Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or firstname.lastname@example.org, or follow him on Twitter – @pdxLaborLawyer.