AI in the workplace: Addressing employee privacy concerns
What is AI?
Artificial intelligence (AI) is when a computer or program has the ability to perform tasks that typically require human intelligence or decision-making. AI systems improve their performance by learning from new data and experiences over time. Algorithms (which are a set of rules or steps a computer follows to complete a task) “learn” by analyzing data sets provided to them and identifying patterns in the data. These algorithms then execute tasks by making decisions in an attempt to replicate the patterns they’ve identified.
AI systems can be identified as “open” or “closed.” Open AI systems are available to users inside and outside the workplace, and information may be shared and retained indefinitely. Users shouldn’t share information on these systems that they wouldn’t want a third party to see. ChatGPT is one example of an open system. “Closed systems” are proprietary and may limit or prevent user prompts from being shared with outside users.
How is AI used by HR?
A growing number of HR professionals are using AI to prepare employment-related documents and analyze large amounts of data to identify patterns and trends impacting the workplace.
Below are some of the ways AI is being leveraged in HR:
Recruiting
Screening résumés, compiling interview questions, communications with applicants, and analyzing video interviews submitted by job applicants.
Computer monitoring
Tracking employee computer and internet usage, including everything from keystrokes and mouse movements to websites visited and files accessed. AI can even be used to track how long employees spend on various tasks. This data can then be analyzed to identify potential productivity issues, security risks, or policy violations.
Video surveillance
AI video analytics can be used to monitor employee behavior in the workplace, detecting concerning behavior like safety violations and theft.
Automation
Automating the collection and analysis of employee performance data for performance reviews.
Training and development
Recommend and provide customized employee training, including adaptive learning platforms based on employee capabilities and progress and predictive analytics for skill gaps and shortages.
Recent legal developments regarding AI and employee privacy
In late October 2023, President Joe Biden issued a wide-ranging Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. One area of focus in the order was “to better protect Americans’ privacy, including from the risks posed by AI” and to call on federal agencies to coordinate their approaches. As a result, several federal agencies issued guidance on employers’ obligations pertaining to AI and employee privacy.
In April 2024, the U.S. Department of Labor’s (DOL) Wage and Hour Division released Field Assistance Bulletin No. 2024-1, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards. In this Bulletin, the DOL notes that AI technology is sometimes used by employers to detect whether employees are lying by analyzing “eye measurements, voice analysis, micro-expressions, or other body movements.” The DOL cautions that such technology use by employers may violate the Employee Polygraph Protection Act, which prohibits private employers from using lie detector tests on employees and job applicants.
In October 2024, the federal Consumer Financial Protection Bureau (CFPB) issued a circular addressing workplace tracking technology, including AI, and how federal Fair Credit Reporting Act (FCRA) obligations might be implicated. Generally, under the FCRA, employers have obligations when ordering “consumer reports.” The CFPB indicates the FCRA would be implicated if an employer obtains employee reports using AI, with details about employees and job applicants, and if the AI uses such data and metrics to convert the information into some sort of score the employer uses in employment decisions.
Note, however, that federal agency guidance isn’t law. Until recently, under what was known as the Chevron doctrine established by the U.S. Supreme Court, courts were required to give “considerable weight” and defer to federal agencies’ interpretation of the law. However, in June 2024, the Supreme Court overruled the Chevron doctrine, holding that courts need not defer to an agency’s interpretation of the law. In addition, as President-Elect Donald Trump will be taking office in January 2025, it remains to be seen how AI and employee privacy concerns in the workplace will be addressed by the federal government.
Many state laws address employee privacy and are applicable to AI, and an increasing number of states are considering relevant legislation. For example, Illinois recently enacted its Illinois Biometric Information Privacy Act, as well as its Artificial Intelligence Video Interview Act. Maryland recently passed the Maryland Online Data Privacy Act, and Rhode Island enacted the Rhode Island Data Transparency and Privacy Protection Act.
AI can greatly improve efficiency and productivity in the workplace. However, before HR professionals incorporate AI into their daily duties, or allow employee use of AI tools, it is important to address the risks and take necessary steps to mitigate them.
