Recently, unions are coming to the negotiation table with requests to negotiate AI type clauses into collective bargaining agreement (CBA). Management should be very reticent to add such language. Here’s why.

Unions offer various versions of “AI Language” for inclusion in CBAs. A common one begins with a gratuitous paragraph about how AI supports, not undermines, professionals in the workplace. It then defines “artificial intelligence.” One common proposed definition is: “Any software, algorithm or machine-learning system that performs tasks that normally require human judgement including but not limited to instructional content generation, grading, data analysis, performance evaluation or behavioral monitoring."[1] The proposal next seeks to restrict a school district from using AI in a manner which impedes on union exclusivity. Language sometimes includes prohibitions against AI being used to supplant union positions.

A quick refresher background. Once a union is certified to represent a group of employees in similar positions (e.g., teachers) it becomes the sole representative of all those who perform that work. An employer cannot separately negotiate with an individual who performs that work. Another organization cannot represent that group instead. Exclusivity also restricts employers’ ability to contract out or have someone other than a union member perform that work – think about a union of custodial workers and contracting with an outside company to clean school buildings. Violating exclusivity could give rise to a successful legal challenge at PERB.

The AI language proposed by some unions aims to ensure union workers do not lose positions because work can be done by AI. There are multiple reasons to be reticent to include such language into a CBA.

Legally, it is not necessary. If a position is eliminated and a union believes this is because AI replaced it, the union can file an action at PERB. The Taylor Law provides a remedy. Additional contract language is unnecessary. At best, adding language foists the parties into a contract grievance process, creating two avenues for the union to pursue its perceived claim. However, agreeing on mutually acceptable language on this issue would preclude both a PERB challenge and grievance. Thus, as with most collective bargaining, the benefits and risks must be weighed.

Some of the language promoted unions is flawed. Initially, it refers to and defines ‘artificial intelligence’, not generative artificial intelligence. It is too broad and risks too much work being included.

More critically, employers should not contract away use of AI. If restrictions on use are going to be imposed, this should be through school board action, applicable to the entire school district, not just a group of employees. An AI policy should be carefully developed and written. It should also be routinely examined and updated as this, the fastest growing, most innovative technology of our time, evolves. Inserting contract language restricts a school district’s ability to be nimble and comprehensive with its rules on AI use.

Data also shows AI use is assistive and helpful in schools. In the 2024-2025 school year, six in 10 teachers reported using AI for their work. Uses included preparing for class, making worksheets, or modifying materials to meet student needs.[2] Teachers reported improvements in the quality of work.[3] Teachers also reported saving six weeks of time by using AI (over the course of a 37.4 week school year.)[4] Teachers report saving lesson planning time and using AI as a creative “jump-start” to music classes or “helping visually impaired students get a mental layout of the playground or classroom that surrounds them.”[5]

An NEA study advocates AI to strengthen effectiveness of academic accommodations, providing students with digital tools for notetaking, organizing, planning and more.[6] “AI-enabled chatbots can handle simple student queries, allowing educators and specialized instructional support personnel (SISP) to focus on more complex student needs.”[7]

Contract restrictions on AI use could curtail the myriad benefits already realized. Currently, no evidence exists of supplanting employees with AI, restrictive contract language could prevent innovative restructuring staff and school time. Could it allow more innovative use of talent; expand additional one on one learning time – especially if six weeks of time is saved – YES. These notions must be fostered.

School officials heading to the negotiating table should be prepared for AI proposals. Be cautious. Work with your school attorney and negotiators to respond. Most of all, keep in mind, while there are always unknowns with new technologies, they should be explored, not just limited for a singular purpose. As Professor Alfarwan concluded in one of the most robust analyses of AI in K-12 to date:

“GenAI has arrived, and its implications for teaching and learning, including K-12 education, cannot be overstated. K-12 education lays the foundation for future education and career success by preparing students with the knowledge, skills, and confidence needed for college and careers. It is crucial to support this demographic with emerging technologies and opportunities to ensure they are future-ready citizens.”[8]

DISCLAIMER

Nothing herein is meant to provide legal advice. Always contact your attorney for specific advice and counsel on any legal matter for formal legal advice.

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[1] ChatGPT, Claude and Gemini considered this definition too broad, non-specific and/or incomplete.

[2] Teaching for Tomorrow, How Supporting Teachers Today Shapes Classrooms Tomorrow, Walton Family Foundation & Gallup (June 2025); also see Andrea Malek Ash, Three in 10 Teachers Use AI Weekly, Saving Six Weeks a Year, Gallup (June 25, 2025).

[3] Id.

[4] Id.

[5] Report of the NEA Task Force on Articial Intelligence in Education, National Education Association (NEA), April 2024.

[6] Id.

[7] Id.

[8] Abdullah Alfarwan, Generative AI use in K-12 education: a systematic review, Frontiers Education Vol. 10 September 22, 2025 Volume 10 | https://doi.org/10.3389/feduc.2025.1647573.