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Protecting sensitive information and avoiding the negative impacts of using AI in HR processes depends on understanding employment law.
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Generative AI can have a significant impact on workplace dynamics, potentially delivering significant benefits to companies that can manage risk. Here we focus on employment law related to the use of generative AI in the workplace. This includes what employers need to do to protect sensitive information and align practices with regulatory guidelines to prevent the potential for embedding AI in HR processes to cause stigma and discrimination. increase.
Protect confidential information
Generative AI systems are trained on large datasets containing information entered by users. Input is not normally protected as confidential. This means that most systems can use these inputs to generate output for other users.
In most cases, employees and contractors who enter company information containing confidential or sensitive information essentially release that information into the public domain. As a result, the information may lose the confidentiality protection normally granted by courts. This is also the case when employees and contractors sign non-disclosure agreements or other restrictive terms agreements. Because these agreements do not protect publicly available information.
Moreover, it may not be enough for companies to simply broaden the definition of “confidential information” in contracts. Confidentiality is a frequently contested area in restriction litigation. Although several factors are taken into account, information available in the public domain is generally not protected. Courts need to specifically consider whether such information loses its confidentiality when input into a generative AI system. This can become increasingly important as the use of generative AI systems grows.
To protect sensitive information, employers should put policies in place for the use of generative AI systems. While some may choose to ban the use of these technologies, they may be at a disadvantage as the scope and effectiveness of generative AI expands. Another option would be to provide clarity on the proper use of AI, including guidelines on what information can be entered and how to avoid over-reliance on AI output that could be inaccurate, misleading, or biased. creating guidelines. Guidelines need to be strengthened through employee training programs, content monitoring, technical solutions to limit usage, and policies need to evolve as AI technology evolves.
Avoiding negative impacts on HR processes
The Equal Employment Opportunity Commission (EEOC) has been working on the potential impact of AI on workplace discrimination since 2016. Initially, the agency was optimistic about AI’s potential to reduce unconscious bias in decision-making, including employment and performance. evaluation. However, like other regulators and state legislatures, the EEOC has become increasingly concerned about the risks of algorithmic decision-making.
In 2021, the EEOC launched an agency-wide effort to ensure compliance with anti-discrimination laws when AI is used to make employment-related decisions. A first significant step was taken in May 2022 when guidance related to age discrimination laws in employment was issued. This guidance primarily addresses the need for reasonable accommodations for applicants and employees with medical conditions or disabilities that may affect their ability to take an exam or their performance on an exam.
The EEOC recently issued additional guidance focusing on whether the use of AI could have “negative effects” on protected groups, expanding the guidance beyond disability-related concerns. According to the EEOC, employers are responsible for the use of AI tools in the workplace, even if the tools are designed or controlled by an outside party such as a software vendor. Employers should conduct self-audits to ensure that these tools are not causing adverse effects. Where applicable, employers should consider ways to mitigate these effects.
Employers who incorporate AI tools into their operations have a responsibility to ensure that their actions comply with both EEOC guidance and newly enacted state and local laws nationwide need to do it. If he is using AI tools to assist in employment-related decisions, he should consult an employment advisor to ensure full compliance.
The content of this article is intended to provide a general guide on the subject. For your particular situation, you should seek professional advice.
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