AI in the Workplace: A Roadmap For HR Professionals

Artificial intelligence (AI) is an exciting new frontier that is becoming more readily accessible to the public. As governments grapple with the right approach to regulating AI, legal risks are already present, including potential perils for employers arising from concerns around bias and discrimination, as well as copyright infringement, inaccurate data and privacy considerations. Now is the time for all employers to consider implementing explicit policies regulating the use of AI in the workplace.

READ: AI Revolution — Unveiling the Transformative Power and Unforeseen Consequences

Government oversight

There is an emerging patchwork of laws that impact companies’ use of AI. For example, New York City, Illinois and Maryland already have enacted laws regulating employers’ use of AI in the hiring process. The European Union is considering the first comprehensive piece of AI legislation that would regulate various areas, including employers’’ use of AI. Colorado legislators have indicated that they will join a multistate task force to create model AI legislation this fall.

AI-related enforcement activity is also beginning to take place. On Aug. 9, 2023, the EEOC settled its first lawsuit against an employer who allegedly used AI in a discriminatory way (in this case, to reject older job applicants.)

Uses of AI in the workplace

Against this background of growing government regulation, the uses of AI in the workplace are proliferating, including:

• Generative AI: Generative AI processes extremely large sets of information to produce new content and can do so in a format the AI tool creates (i.e., images, written text, audible output).
• Recruitment: AI products are evolving to make recruiting more efficient and effective, including by using predictive analytics to forecast which candidates are most likely to be successful in the role.
• Predicting misconduct: Various tools claim to identify “hot spots” for potential misconduct and allow management and HR to take action before a problem arises.
• Retaining talent: Companies are also leveraging AI in their efforts to retain top talent by using machine learning to predict if an employee is likely to depart.

Intellectual property (IP) concerns

AI raises various IP-related issues that employers should be aware of, including:

• If a company uses AI to create work product, who owns it? Companies should not presume they own any resulting rights in work product. On Aug. 18, 2023, the U.S. District Court for the District of Columbia held that authors of works must be human beings, which excludes machine-authored works: “Human authorship is a bedrock requirement of copyright.”
• Is there potential liability for copyright infringement if the AI tool uses unlicensed work in generating results or the results incorporate unlicensed work? To date, AI companies generally have not sought permission from copyright owners to use their works as part of the large data sets ingested by AI tools; there is an emerging area of litigation in which authors, artists and major rights holders in various fields assert that AI companies infringe upon their copyrights.

Privacy Concerns

Employers must be aware of the inherent risks associated with disclosing data about their workforces to AI tools and consider the following:

What are the risks associated with the disclosure of personal data to AI tools?

By inputting personal data into an AI tool, an employer may lose control of that data and find it made publicly available or disclosed as the result of a data breach. Employee data is often highly sensitive and the repercussions of inadvertent disclosure can be great.

Is the company still able to comply with requests to exercise data rights as required by applicable law if data is inputted into an AI tool?

Depending on where employees reside, they may have rights to access, correct, delete or stop the processing of their personal data. If that personal data has been submitted to an AI tool, deleting the personal data may be problematic.

READ: Secure Your Business in the Digital Age — Essential Data Protection Strategies

Recommendations for employers

It is not a question of whether employers will need to address AI in the workplace; rather, it is an issue of when and how they should address it. Employers would be well-advised to take the following steps in the short term:

• Become familiar with what AI is generally and what AI the company is already using.
• Assemble the right stakeholders to discuss appropriate policies governing the use of AI at work.
• Consider what uses of AI are appropriate for your workplace and what uses are not appropriate.
• Incorporate compliance with legal issues in designing your policies, including:
  • Ensuring that AI is not used in a way that could adversely impact any group based on protected characteristics.
  • Providing appropriate notice to candidates/employees concerning the company’s use of AI and obtaining consent as may be required under applicable law.
  • Ensuring that the use of AI does not conflict with any statutory or contractual right to privacy held by candidates, employees or consultants.
  • If applicable, develop and implement a similar policy for how your vendors may use AI.
  • Understand what data AI is collecting and how it is assimilating and using data at an organizational level and at a personal level.
  • Assign responsibility for all aspects of the use of AI within your organization so that roles are clearly understood and accountability exists.

AI offers exciting new opportunities, but it also comes with risks and a degree of uncertainty. By ensuring that they understand the uses of AI within the organization, the way it functions and the end results, employers can utilize AI while minimizing legal risk.

This article is Sponsored Content.

Authors: Brownstein Hyatt Farber Schreck shareholders Luke Glisan (left), Christine Samsel (second to left), Airina Rodrigues (second to right), and Darcy Levy (right). Brownstein’s multi-faceted team works together to give employers a well-rounded assessment of risks.