As detailed in the first installment of our multipart series, artificial intelligence (AI) and generative artificial intelligence (GAI) have had a sweeping impact on the U.S. workplace. As we will detail in this second installment, employers have implemented AI and GAI measures to assist with various aspects of the employment relationship, from recruiting through separation of employment. While these measures have assisted employers with efficiency and streamlining of certain HR operations, as discussed below, they potentially come with some pitfalls as well.

Examples of AI in the Workplace

  • Recruiting and Screening: Employers are increasingly using AI to filter and sort through voluminous application materials and screen job applicants. By using algorithms and other automated learning capabilities, AI can be used to apply predetermined criteria to candidates and weed out unqualified jobseekers. These measures increase recruiting efficiency and improve employers' ability to find suitable candidates for open positions. The use of AI can also alleviate concerns regarding human bias as AI can assess candidates strictly based on their merit, credentials, and accomplishments. This helps remove protected characteristics, such as race or gender, from consideration. AI can also provide efficiency by analyzing applications and related documents, reviewing applicants' social media profiles, and assessing applicants' online presence to gain additional insights into applicants' backgrounds.
  • Background Checks: Employers are also utilizing AI to conduct accurate and timely background checks. AI can efficiently verify candidates' educational backgrounds, asserted work experience, professional certifications, and criminal histories. This ensures comprehensive and accurate screenings and saves employer time and resources. Moreover, AI can highlight potential red flags from online sources, databases, and public records.
  • Job Interviews: Since the pandemic, virtual interviews have become commonplace and have allowed employers to implement AI-powered bots to conduct screening interviews and provide instant feedback to managers. In that regard, AI can present job candidates with questions, which can then be responded to by interview candidates. AI voice and facial recognition technology can also be implemented to assess facial expressions, tone, and mannerisms.
  • Assistance with Tasks: Employers are implementing AI chatbots and virtual assistants to perform simple administrative tasks, such as guiding employees to policies and answering basic questions regarding employee benefits. This not only reduces the clerical work conducted by staff, but also helps ensure that employees receive consistent information. Employers are also using AI to assist employees with menial tasks so that they can focus their efforts on the more complex aspects of their roles.
  • Reduction in Force Analysis: AI has also been used to assist employers with reductions in force (RIF). Employers can input certain criteria and factors into AI to identify appropriate candidates for a RIF. Such factors may include performance, skills, rank, position, tenure, and customer satisfaction ratings. AI provides an objective approach for employers to effectively remove human bias from these difficult employment decisions.

Examples of GAI in the Workplace

  • Document Creation and Translation: Some employers have begun utilizing GAI, such as OpenAI's Chat GPT-3, to create documents such as offer letters and employment agreements, separation agreements, and workplace policies. GAI is able to emulate human writing when given a specific prompt and is capable of efficiently researching and generating well-written documents, enabling users to document content quickly. In addition, employers also use GAI to perform language translations. While existing platforms can provide simple translations, GAI can consider context and provide more than just literal translation.
  • Performance Management: GAI-based performance management systems provide insight to HR departments that can contribute to more objective performance evaluations. While AI algorithms are useful when measuring and analyze performance data such as productivity, attendance, and work quality, GAI is capable of highlighting areas of improvement, pointing out current strengths, and developing strategies for increased productivity. Additionally, GAI can use key performance indicators to measure progress towards targets and objectives, as well as time tracking software to evaluate employee performance and predict overall production in real time. These capabilities enable GAI to provide a more holistic review based on an employee's role and contributions.
  • Reduction in Force Selection: GAI can be used to assist employers with RIF selection as it can learn data and predict potential legal risks associated with employment decisions (e.g., notice requirements for mass layoffs and whether certain employee categories are disproportionally affected by the RIF).

What are the Risks?

Notwithstanding the efficiencies offered by AI and GAI, human oversight is still recommended when using both for HR purposes. This is for a host of reasons, including because disparate impact may nonetheless result when AI and GAI are used because, if selection criteria or prompts contain biases, the AI or GAI can learn and perpetuate these biases. In addition, AI and GAI may unintentionally exclude individuals if they do not meet certain selection criteria or are otherwise misjudged by the algorithm/prompt. Moreover, AI and GAI, if not checked, could result in the inadvertent disclosure of personally identifiable information and other sensitive information, as well as the violation of company policies on confidentiality and intellectual property and other such obligations in employment-related agreements. Further, AI and GAI may not necessarily capture or properly analyze all legal nuances when reviewing materials, preparing HR documents, or aiding in personnel decisions. Ideally, AI and GAI should be implemented in tandem with human review. Employers should establish safeguards to oversee the processes for which AI and GAI are utilized to help protect against errors and potential legal exposure.

In the next – and final – part of this series, we will discuss the challenges employers encounter when implementing in the workplace.

This article is presented for informational purposes only and is not intended to constitute legal advice.