Artificial intelligence (AI) presents a promising frontier for employers, by enhancing workplace productivity, automating routine tasks, and in some cases, improving employee performance. However, as employers navigate this evolving digital landscape, prudence and best practices remain paramount.
Below are five key considerations for employers:
Remain active in decision-making. AI can be a helpful tool in the recruitment and evaluation processes, aiding in tasks from crafting job descriptions to candidate assessment. However, improper use could lead to discriminatory outcomes. AI systems generate insights by analyzing data for patterns, which could lead the system to “learn” to favour candidates with certain characteristics related to age, gender, race or other protected grounds under human rights legislation. Employers should actively oversee AI-driven processes and familiarize themselves with relevant human rights legislation to ensure fair and compliant decision-making.
Be transparent. If using AI for recruitment, employers should obtain candidate consent. In Ontario, if AI is being used to monitor employees, employers may need to disclose this in their Electronic Monitoring Policy (see our October 2022 Blakes Bulletin: Ontario’s Employee Electronic Monitoring Policy: October 11 Deadline Approaching). Familiarity with privacy laws is essential for employers using AI when collecting, storing or analyzing employee information with AI, and privacy impact assessments are advisable for AI implementation.
Consider the effects. Implementing AI can enhance administrative efficiency, allowing employees to focus on substantive work. However, this may render some jobs obsolete or necessitate a restructuring. Employers must understand how AI may affect their workforce and consider the costs of terminations and restructuring when adopting AI solutions. Additionally, recognizing that employees will have varying skill levels with new technology, employers should consider offering training on the applicable use of AI. It's also critical to ensure that any potential restructuring or layoffs do not discriminate (directly or indirectly) against employees based on protected grounds, such as age.
Create AI policies. Employees may be tempted to use AI technologies, such as ChatGPT, to assist with their substantive work. Doing so creates risks with reliability and confidentiality, including potential breaches of privacy and data protection laws, among others. Employers should establish clear AI usage policies to protect sensitive data and align with corporate interests. These policies should specify security measures and acceptable AI practices to minimize the risks associated with AI implementation.
Work with AI service providers. Employers should be alert to the practices and procedures of their third-party AI service providers and secure written agreements on cybersecurity and legal compliance, as well as assess and mitigate algorithmic bias. Employers may also work with their service providers to gain valuable insights into the use of AI.
Have more than five minutes? Contact any member of our Employment & Labour group to learn more, or register for our upcoming webinar on October 19, 2023, for an in-depth discussion about AI in the workplace, with Blakes Partners Laura Blumenfeld, Daryl Cukierman and Aldona Gudas.
Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue. We would be pleased to provide additional details or advice about specific situations if desired.
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