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When A.I. and Chat GPT Mix with Employment Law

June 21, 2023

Tony Herman

In 2004’s Will Smith-led “I, Robot,” Smith’s character asks Sonny the robot a series of questions in explaining the difference between machines and humans. “Can a robot write a symphony? Can a robot turn a canvas into a beautiful masterpiece?” Of course, those questions were rhetorical at the time.

Fast forward twenty years.  

As the definition of “work product” becomes blurrier and blurrier, employers have increasingly found themselves asking (i) what can A.I. do for their workplace, but also (ii) what shouldn’t A.I. be doing for their workplace. The answer – stop me if you’ve heard a lawyer say this before – is that it depends.

Are you planning on using A.I. during the hiring process? The EEOC already has released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” which is a lot of words to say that if A.I. produces a discriminatory result, it is still discrimination imputable to the employer. Employers must be cautious of the effect their use of A.I. has on their compliance with a host of employment laws, like Title VII of the Civil Rights Act of 1964 and similar state and local anti-discrimination laws, and the federal Fair Credit Reporting Act, which requires disclosures made to employees and applicants when using a third-party background check system.

What about employees using A.I. in the course of their duties? Employers should have a policy preventing employees from disclosing any confidential information to ChatGPT or any other A.I. – whether it be trade secret information of the employer, or any other kind of protected medical, financial, or other information of vendors or customers. ChatGPT and other A.I. programs have the ability to “learn” from every conversation – so, if inputted, even information that should remain private will be used and potentially shared with others. Of course, employees also must be reminded that they will be responsible for A.I.-generated work product – just ask the attorney who may be facing sanctions after writing a legal brief using A.I. case citations that were completely fabricated.

Beyond their own policy choices regarding A.I.’s role in the workplace, employers should also be wary of other workplace policies that the mere existence of A.I. directly impacts. For example, some employees use A.I. without their employer’s knowledge to the point where they feel they can perform – and be paid for – two jobs at the same time. While employees have a duty of loyalty to their employer, generally prohibiting this, it makes things a lot easier for employers if they have and maintain a legally enforceable moonlighting and/or conflict of interest policy. Employee input into A.I. also can have far-reaching intellectual property and copyright effects.  

A.I. is the future – and it can be extremely valuable now, especially as an educational resource for employees. It may even be able to write a symphony or paint a masterpiece. But it is not perfect, yet, and employers who rely on it, without regard to the employment laws even A.I. seems to get tangled in, may wind up paying the price.

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