WGA negotiations signal a broader increase in unionization against AI adoption/development.

The impact of AI is now at the center. In the case of the current writers’ strike, workers fear that their work in writing scripts will be automated, without need for their input. In short, writers are concerned that AI will eventually be used to produce literary material for a film or show. The WGA seeks to limit the use of AI as a tool to augment writers’ work as opposed to automate it by requiring that literary material be produced by, and credited to, a person. The WGA also seeks to limit use of unionized writers’ prior work to train AI systems to produce similar material. The Alliance of Motion Picture and Television Producers (AMPTP), a trade association representing studios and networks, has so far refused to be limited in its use of AI. Instead, it has proposed annual meetings with the union to further discuss changing use of AI technology Although AI in its current form is far from developed or sophisticated enough to replace writers at this stage, the expiration of the WGA’s contract with the AMPTP is the impetus for the current debate. As a general matter, the scope and duty of an employer’s obligation to bargain with the union depends on whether the negotiations are taking place during the term of a contract or otherwise, and whether the matter is a “mandatory” or “permissive” subject of bargaining under applicable law. Under the National Labor Relations Act (NLRA), unions and employers are required to bargain in good faith about “wages, hours, and other conditions of employment,” otherwise referred to as “mandatory” subjects of bargaining. With respect to these matters, an employer must bargain with the union about the decision to take a particular action. This type of bargaining is commonly referred to as “decision bargaining.” By contrast, employers are generally not required to bargain prior to making core managerial decisions pertaining to the operation of the business. These types of matters are generally referred to as “permissive” subjects of bargaining. Nonetheless, employers are required to bargain about the effects of major operation changes that will affect the terms and conditions of employment. This type of bargaining is commonly referred to as “effects bargaining.” During the term of a collective bargaining agreement, an employer cannot unilaterally change the terms and conditions of employment or the terms of the collective bargaining agreement without first negotiating with the union, and neither party is required to negotiate with respect to matters covered by the agreement. If a matter is not covered by the agreement, employers must negotiate with the union over mandatory subjects of bargaining and the effects of any permissive subjects of bargaining. Notably, employers may reserve the right within a collective bargaining agreement to make certain decisions related to the operation of the business during the term of the collective bargaining agreement without first negotiating with the union. These clauses are typically referred to as “management rights” clauses. Once a contract expires, employers must honor the terms of the expired agreement while negotiating with the union over the terms of a new agreement until the parties reach impasse. An employer’s decision to introduce new technology in the workplace has typically been considered a permissive subject of bargaining. Therefore, absent a provision in the applicable collective bargaining agreement, employers are generally not required to bargain with unions over the decision to introduce new technology in the workplace. Nonetheless, because of the potential of AI to change the dynamics of work, its use in the workplace could require an employer to engage in effects bargaining, which could—depending on the circumstances— involve discussions on issues like job security, opportunities for retraining and job displacement caused by the implementation of new technology. Because use of AI is likely a permissive subject of bargaining, the WGA is currently looking to add language to the applicable collective bargaining agreement to limit the use of AI. Given the increasing prevalence of AI across industries, other unions may follow WGA’s lead. Future labor negotiations are likely to include demands similar to those being made by the WGA, and such demands are likely to become commonplace as unions seek to adopt provisions in collective bargaining agreements that limit the use of AI. These discussions are particularly likely to emerge in creative and professional industries, and it is anticipated that there will be an increased demand for agreements that preserve creative control and utilize AI as a tool, not a replacement. Notably, as with prior WGA strikes, other labor unions representing employees in the entertainment industry have made their support for the WGA known, including the Screen Actors Guild—American Federation of Television and Radio Artists (SAG-AFTRA), whose contract with AMPTP expires at the end of June. Interestingly, on June 3, the Directors Guild of America (DGA) announced that it reached a tentative deal for a new three-year collective bargaining agreement with AMPTP, which would provide that AI is not a person and cannot replace the work performed by the members. AI has already begun flexing its power as a transformative force for both employers and unions, and its integration into workplaces is expected to reshape and redefine labor dynamics. Demands for AI to be restrained are expected to increase in the future, particularly in the creative and professional spaces; the writers’ strike will likely prove to be only the first of many union challenges to the implementation of AI. Issues such as job security and creative control will likely emerge at the forefront of labor negotiations. As AI continues its rapid evolution with no signs of slowing, employers in industries across the board must be ready and willing to embrace new opportunities and mitigate potential challenges with the aim of creating a future where both humans and AI can coexist in the workplace. Against this backdrop, employers of both unionized and nonunionized workforces should also be mindful of the changing legal landscape with respect to use of AI.