The use of AI to assist in HR functions has grown in popularity throughout the country. Companies are using AI for everything from drafting personnel policies to screening applicants for open positions. There are, however, risks associated with these AI applications, which include the following:
- An AI program used to screen applicants could potentially disfavor individuals in protected categories in violation of Title VII, the ADA or other federal or state law resulting in discrimination claims.
- An AI program used to provide guidance on employment issues could miss critical facts or applicable law resulting in poor outcomes and claims.
- An AI program used to draft contracts or separation agreements could potentially leave out significant terms and provisions. Imagine the situation when a severance agreement drafted by AI doesn’t include a no rehire provision; employee signs it; employee receives the consideration; and then employee immediately reapplies for a new position with the company, exposing the company to a potential retaliation claim when the employee is not rehired.
- An AI program used to screen applicants for open positions may make it more difficult to defend discrimination claims based on legitimate business reasons (e.g., the applicant did not possess the required education, training and experience for the position) if the program does not retain specific facts in regard to why a particular applicant was not offered an interview or the position.
- Breach of confidentiality if an employer uses an open AI program to research issues related to a particular employee or sensitive employment matter.
There are actions employers can take to reduce their risks for the above described possible issues, which include having a written AI policy. The policy could include such provisions as the required qualified human audit of AI work product before it is used or implemented; the requirement of only using closed AI programs to maintain confidentiality; and the requirement that vendors, which are hired by the company to perform an HR function, must comply with certain requirements related to the use of AI.
The members of Poyner Spruill’s employment and employee benefits section are monitoring the developments in this area of the law and will be glad to provide guidance and assistance related to same.
