Artificial Intelligence: Three Legal Areas to Consider

HR & Safety

Last Friday, I had the opportunity to talk about Artificial Intelligence in the Workplace at CBIA’s Employment Law Conference. There was a lot to cover in our discussion and a lot of takeaways too.

For those in human resources or in-house lawyers reviewing a company’s potential use of AI in the workplace, here are three areas of concern to think about.

Bias in Recruiting Efforts

Some areas of AI are further along in adoption than others. One of those areas is in recruiting. Already, there are companies that are marketing services to review hundreds (or thousands) of applicants and give each candidate a score based on multiple factors.

The potential pitfall is that the output from some of these systems may have a disparate impact on a protected group.

The most notable example was a system being developed (and rejected) by Amazon that did not like women.

Thus, HR needs to have a seat at the table when these systems are being considered.

How is the output from any AI algorithm being reviewed and analyzed?

Whose responsibility is it to ensure that the law is being followed?

Monitoring Existing Employees

No longer are employers just checking when employees are punching in or punching out on time.

With AI, employers can now monitor nearly everything about an employee’s day.

Think about a system that can monitor keystrokes, can analyze the content of e-mail and text messages, can track how long employees are taking breaks and where, and even the employee’s social media content.

And then such a system could predict—is an employee happy? Being productive? Thinking about leaving?

Such a system could predict—is an employee happy? Being productive? Thinking about leaving?

While such a system seems far into the future, the truth is that AI is being used NOW for some of these same things. Being the potential for bias being introduced, such a system raises important privacy considerations.

In Connecticut, we have an electronic monitoring statute that requires employers to notify employees of the types of monitoring being used. But in Europe, such a system might also implicate GDPR.

And do employees have any remaining expectation of privacy in the workplace?

Thinking about this issues holistically before creeping implementation is critical.

Automation and Job Replacement

Have you met Marty? It’s one of the robots deployed at Stop and Shop to patrol the aisles and assist customers. (Or, maybe you haven’t met Marty because you do all of your grocery shopping online now).

It might seem a bit foreign for now, but think about the robots that can (and will?) be deployed in the workplace.

Imagine one that can go to each employee to determine if he or she has filled out the forms in open enrollment and can process all of the data to make sure it matches the information the employer already has.

Or what about a system that will automate the on-boarding process for new employees?

What will HR be needed for in the future?

It might seem a bit foreign for now, but think about the robots that can be deployed in the workplace.

Think this is just fantastical?

I think back to the law offices of 25 years ago with big word processing teams, librarians, and more.  It’s far different now. Why? Because automation and technology rest for no one.

Human resources is no different. Yet, it will likely lead to roles where higher-level analysis is needed and where a human touch is still preferred. 

Still, where there is going to be job replacement, employers should document the decision-making process to avoid legal claims.

As one of my co-presenters from Tallan, Doug Smith, said: “We are going through yet another technology revolution in the workplace. HR and employment law will continue to need to evolve to play a role in this new workplace.”

About the author: Dan Schwartz is a partner with Shipman & Goodwin and represents employers in various employment law matters such as employment discrimination, restrictive covenants, human resources, retaliation and whistle blowing, and wage and hour issues. He has extensive trial and litigation experience in both federal and state courts in a variety of areas, including commercial litigation and trade secret enforcement. He is the author of the independent Connecticut Employment Law Blog. The blog discusses new and noteworthy events in labor and employment law on a daily basis.


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