Artificial Intelligence and Employment Law
The implementation of Artificial Intelligence (AI) by employers is reshaping the modern workplace and requiring new developments within employment law. For employers and employees alike, applications of AI at work present opportunities for great innovation and growth, while creating new challenges and legal pitfalls. As the use of AI by employers develops, policy makers and regulators are continuously seeking to understand the implications of the technology in order to protect workers against unlawful employment practices.
Avloni Law is dedicated to representing employees who face all forms of unlawful treatment at work, including unlawful practices caused by the use of AI. The team of attorneys at Avloni Law is closely following the developments in law and policy surrounding AI use in the workplace, and is prepared to hold bad actors accountable. If you have questions or concerns about the use of, or implications of, AI in your workplace, reach out to Avloni Law today.
Artificial intelligence-based workplace discrimination
Nearly 85% of large employers have begun implementing Artificial Intelligence (AI) systems into their workplaces. For businesses, AI has the power to increase efficiency, productivity, customer service, quality control, and employee safety, and to decrease costs of human labor. Alongside tremendous opportunity for progress presented by AI, the new technology also presents significant pitfalls if implemented incorrectly. One of the biggest concerns that AI poses is the idea that it could undermine workers’ rights by embedding bias and discrimination into decision-making processes. Since AI operates on data that humans have chosen to input, and without any necessary oversight, AI may replicate biased and unlawfully discriminatory patterns in its output.
Employment Discrimination:
Broadly, employment discrimination is the differential or unfavorable treatment of employees based on their membership in a protected class or participation in a protected activity. Protected classes in California include (but are not limited to): race, color, religion, sex/gender, gender identity, gender expression, sexual orientation, marital status, medical condition, military or veteran status, national origin, ancestry, disability, genetic information, medical condition, request for family care leave, request for leave for employee’s own serious health condition, request for pregnancy disability leave, and age (over 40). Differential or unfavorable treatment in the workplace could impact hiring, pay, benefits, workplace opportunities, performance reviews, physical or verbal treatment, assignments, and firing.
Discrimination in AI-Based Hiring and Assessment:
While AI presents numerous legal hurdles in employment law, AI driven discrimination is currently the most pressing concern. AI is frequently used by employers to assist with hiring, performance reviews, promotions, raises, and layoff decisions. Ideally in these processes, AI would eliminate any human bias and evaluate job candidates and employees purely based on quantifiable merit. Ironically in reality, AI may not actually eliminate human bias but instead propagate bias.
In order for AI to act as a hiring and/or performance evaluation tool, humans must feed AI data regarding successful candidates and employees. The danger lies in the possibility that the data presented to the AI can contain bias, or give an incomplete or skewed picture of what a hire-able candidate or strong employee may look like. If provided with data that contains implicit biases, the AI will in that case continue to replicate the biased or incomplete patterns within it’s output, discriminatorily favoring certain candidates or employees over others. Ultimately, AI is only as good as the data it relies on. If the data is bad, AI could undermine workers’ rights by embedding bias and discrimination into decision-making processes, while removing transparency and human oversight from the same decisions. If, for example, AI is utilized to make hiring and promotion decisions, it may prefer to hire or promote candidates that reflect a company’s current workforce. If that same company’s leadership is 70% male, the AI may give preference to male applicants or employees while discriminating against non-male candidates.
Recruiting and Hiring:
AI is frequently used to create job listings, connect applicants to job listings, identify potential candidates to recruit, review job applications and select applicants for hire, and conduct initial interviews. If the AI is operating with biased or skewed data, it may discriminate against certain kinds of job seekers while disproportionally favoring others. When employers then make hiring decisions based on that AI’s biased recommendations, that employer is (consciously or unconsciously) practicing discrimination in hiring. Alternatively, if the AI is validated to minimize the risk of bias, AI can help to reduce bias and increase efficiency in the hiring process.
Assessment:
AI is commonly used to monitor employee performance and can be relied upon to make employment decisions including recommending employees for promotions, raises, and layoffs. If the AI is operating with biased or skewed data, it may discriminate against certain kinds of employees while disproportionally favoring others. When employers then reply upon AI’s biased recommendations to make employment decisions, that employer is (consciously or unconsciously) discriminating against employees. If the AI is property trained to remove discriminatory bias, AI can help to reduce bias and increase efficiency for employers.
Employers are also using AI to track employees in various ways; AI surveillance tools have the capacity to monitor work hours, efficiency and productivity, gait speed, keystroke frequency, screen time, and more. Such data may promote discrimination, especially in regard to physical and mobility concerns. Implicit disability discrimination perpetuated by AI surveillance is unlawful. AI surveillance poses additional legal and ethical employee privacy concerns.
Employer Accountability for AI-Based Discrimination:
Ultimately, anti-discrimination employment law is simple enough. Employers are responsible for their own actions, and may be held accountable for any unlawful labor practices. If an employer takes a discriminatory action based on a human or AI recommendation, the employer remains responsible for their discriminatory behavior, and can be held accountable.
Implementing fair artificial intelligence systems at work
Ideally, AI will be applied in the workforce in a way that improves the conditions of jobs, making them safer and more fulfilling. Successful employers and employees will be those who embrace AI and harness its transformative potential, while carefully implementing systems that prevent bias and discrimination.
The Federal Department of Labor (DOL) has recognized the tremendous opportunity for progress presented by AI, while calling to attention the importance of protecting workers from the rapid changes brought on by the rise of AI. As part of the AI Executive Order, the DOL published guidance for employers using AI in the workplace to help employers navigate the implementation of the new technology.
The DOL’s Principles and Best Practices for Developers and Employers emphasize the following eight points:
- Centering Worker Empowerment: Emphasizes the importance of having workers and worker representatives actively engaged in, and informed of, the design, development, training, and use of AI at work.
- Ethically Developing AI: Taking workers legal rights into account throughout the design and implementation of any new AI, and critically examining AI to account for unlawful biases.
- Establishing AI Governance and Human Oversight: Establishing clear and routine procedures for human oversight and evaluation of how AI systems are working.
- Ensuring Transparency in AI Use: Companies using AI should be transparent about the use and role of AI with all employees and job seekers.
- Protecting Labor and Employment Rights: AI should in no way infringe upon workers’ rights, including their rights to organize, their rights to health and safety standards, wage and hours rights, and their right to work in a workplace free of discrimination and/or harassment.
- Using AI to Enable Workers: AI should complement and augment the human labor force; assisting the workers and improving the quality of their working conditions.
- Supporting Workers Impacted by AI: Employers should provide employees who are impacted by the implementation of new AI with appropriate training opportunities.
- Ensuring Responsible Use of Worker Data: Employees right to privacy must remain; any data collected by AI regarding company employees should be disclosed and limited in scope to only business-related activities
Reach out to an Attorney:
Since AI is a novel tool, it is inevitable that employers and employees have a lot to learn about AI. If you feel that your rights are being violated at work due to biased AI programs, reach out to an employment attorney for assistance. Navruz Avloni is a California employment attorney dedicated to standing up for workers against workplace abuses. Contact the team at Avloni Law in order to learn more about your rights, discuss your potential claims, and obtain legal advice. Call the Avloni Law firm today for a consultation if you have questions.
