Insight

Keep an Eye on AI

Artificial intelligence tools—most notably the “generative AI” systems that have so captured the public imagination lately—are proliferating. How will legislators, regulators and employers deal with the changes these systems bring to the workplace?

Robot in business suit sits at desk beside human man in business suit
Danielle Ochs

Danielle Ochs and Jennifer G. Betts

June 18, 2023 11:03 PM

Employers are increasingly using artificial intelligence tools, including “generative AI,” to automate routine tasks, increase efficiency and improve the quality of goods and services. However, the prevalence of AI tools has sparked growing concerns about their unknown potential effects in countless industries, which in turn has led to closer scrutiny from state, federal and global regulators. According to Stanford’s AI Index Report 2023: Measuring Trends in Artificial Intelligence, an analysis of the legislative records of 127 countries shows that “mentions of AI in global legislative proceedings” have increased dramatically since 2016.

What Is Generative AI?

AI is generally defined as the science of using machines to perform tasks that mimic or simulate human intelligence, such as problem solving and decision making. AI can be applied to many things: analyzing large amounts of data to make predictions, processing natural language to communicate with humans, recognizing images to identify and categorize them according to their content—and much, much more.

Significant advances have been made with generative AI, which refers to technology capable of creating new content: images, music, text or other creative work. According to the AI Index, generative AI truly emerged to captivate the public in 2022 with the release of text-to-image models, text-to-video systems and chatbots. AI Index warns, however, that “these systems can be prone to hallucination, confidently outputting incoherent or untrue responses, making it hard to rely on them for critical applications.”

AI’s Impact on the Workplace

Unsurprisingly, the emergence of AI systems is rapidly changing the nature of work. Studies suggest that more than half of Fortune 500 companies are already using AI in talent acquisition to assess and review applicants, gauge a candidate’s potential fit for a role and provide self-service tools to answer employee-relations questions. According to the AI Index, AI tools “are tangibly helping workers,” and “the demand for AI-related professional skills is increasing across virtually every American industrial sector.”

For example, AI systems are automating complex tasks such as drafting documents and providing customer service without the need for human intervention. Such automation can displace jobs even for those in traditional professions—lawyers, teachers, doctors, nurses—and upend the workplace more broadly. The technology will likely continue to be integrated into offices and become an increasingly valuable tool for workers.

Some employers are wrestling with whether to allow staffers to use openly available generative AI tools, such as various cloud-based chatbot programs. Some have chosen to prohibit them until concerns about accuracy and security can be assuaged, while others are encouraging their workers to use such tools as part of their job as long as they don’t put the company’s confidential or proprietary information at risk. Restricting the use of such tools, though, may become only more challenging as the technology evolves and becomes a greater part of everyday life.

Given generative AI’s rapid acceleration, government regulators have expressed concern that such systems can reflect existing biases or otherwise contain their own biases. Regulators have identified that AI systems may result in disparate treatment of protected classes—gender-based discrimination, for example—particularly when used to make hiring or promotion decisions. Relatedly, data privacy and security are a concern given that AI systems collect and incorporate enormous amounts of data. This can include proprietary information or trade secrets, or workers’ and customers’ personal information and biometric identifiers—notably facial scans, which could trigger compliance problems.

The Regulatory Response

Several states and local jurisdictions have begun to erect guardrails around the use of AI and automated decision-making technology in hiring and promotions. New York City has enacted a law that requires AI tools used in connection with certain employment decisions to be first subjected to a “bias audit” that assesses the tools’ potential “disparate impact” on protected categories—an audit whose results must be divulged publicly. The law also requires employers to notify candidates or employees who reside in the city that such tools are being used, and which qualifications and characteristics they assess. Violations will be subject to a civil penalty.

Unsurprisingly, the emergence of AI systems is rapidly changing the nature of work."

In California, regulators have considered Automated Decision Tool (ADT) strictures that would subject employers to potential liability under the state’s antidiscrimination laws. Additionally, this April, Golden State legislators proposed ADT audit rules similar to those in New York City. According to proponents of the proposed legislation (AB331), “[a]s decision making via algorithm becomes more prevalent in our daily lives, it is crucial that we ensure that it is used ethically and responsibly. . . . Without quick, thoughtful regulation, we face a future where decision making is heavily biased without any protections from the devastating impacts.”

AB331 would require developers and users of ADTs to conduct and record an impact assessment including the intended use, the makeup of the data and the rigor of the statistical analysis. The data reported would include an analysis of the potential adverse impact based on race, color, ethnicity, sex, religion, age, national origin or any other classification protected by state law. Opponents of the bill, including the California Chamber of Commerce, argue that “overregulation in this space can easily undermine many beneficial uses of ADT—including the ability to develop and deploy these tools in a manner that can in fact reduce the instances and effects of human bias.” They urge lawmakers to employ “greater clarity, precision and narrowing of the bill to avoid unintended consequences.”

At the federal level, the Biden administration also desires stronger measures to regulate the use of AI. In April, the Commerce Department issued a request for comment on “accountability measures and policies” to seek “assurance” that “AI systems are legal, effective, ethical, safe and otherwise trustworthy.” It added that “advancing trustworthy artificial intelligence is an important federal objective. The National AI Initiative Act of 2022 established federal priorities for AI, creating the National AI Initiative Office to coordinate federal efforts to advance trustworthy AI applications, research and U.S. leadership in the development and use of trustworthy AI in the public and private sectors.”

In October 2022, the White House signaled its concerns in its “Blueprint for an AI Bill of Rights,” which outlined several nonbinding recommendations for the design, use and deployment of AI technology to protect individual rights focused on safety, discrimination protections, data privacy, notice and the consideration of human alternatives. The White House also issued “From Principles to Practice,” which it described as “a handbook for anyone seeking to incorporate these protections into policy and practice, including detailed steps toward actualizing these principles in the technological design process.” It added that “these principles help provide guidance whenever automated systems can meaningfully impact the public’s rights, opportunities or access to critical needs.”

The U.S. Equal Employment Opportunity Commission and the Department of Justice have further warned employers that the use of AI and automated decision-making tools in hiring could result in unlawful discrimination against applicants and employees with disabilities. According to the EEOC, “[e]mployers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions and establishing the terms and conditions of employment,” adding that “[e]mployers may utilize these tools in an attempt to save time and effort, increase objectivity or decrease bias. However, the use of these tools may disadvantage job applicants and employees with disabilities.” To address that, the EEOC issued technical assistance in the form of questions and answers that “explain how employers’ use of software that relies on algorithmic decision making may implicate existing requirements under the Americans with Disabilities Act.” It also provides practical tips to employers on how to comply with the ADA.

The Road Ahead

As businesses increasingly rely on AI technology, legislators and regulators are expected to continue to scrutinize its use. It will be important for companies and legal professionals to stay up to date on advances and new applications of such technologies.

In the meantime, employers may want to review the extent to which they already rely on AI systems and how they apply them. In addition, they ought to examine whether their policies prohibit or restrict the unauthorized use of third-party AI tools by workers to do their jobs.

Jennifer G. Betts is the Office Managing Shareholder of Ogletree Deakins’ Pittsburgh office. She is also the co-chair of the firm’s national Technology Practice Group. Jenn has been representing employers in all areas of labor and employment law for more than 15 years, including discrimination, harassment, whistleblower, retaliation, class and collective actions, non-competition and non-disclosure covenants, union campaigns, collective bargaining, and unfair labor practices.

Danielle Ochs is a shareholder in the San Francisco office of Ogletree Deakins. She serves as co-chair of the firm’s Technology Practice Group and focuses on matters arising in the TECHPLACETM. She has more than 25 years of experience representing employers in matters involving employment issues and employment-based technology, trade secrets, and unfair competition in federal and state trial and appellate courts, arbitration, and administrative agencies.

Headline Image: Adobe Stock/Dieter Holstein

Related Articles

The Corporate Law & Commercial Litigation Legal Guide 2023


by Best Lawyers

Best Lawyers is excited to launch the Corporate Law & Commercial Litigation Legal Guide for 2023, featuring recognized lawyers for many corporate and commercial specialties.

Shadows of people on a busy street and office buildings

IN PARTNERSHIP

DSK Law: Experience, Dedication and Service to Florida


by DSK Law

DSK Law has represented clients in an array of commercial and business litigation cases in Florida with great attention to detail and communication since 1976.

Group of lawyers standing together outside in front of building

Digital IP’s New Frontier


by Elizabeth D. Ferrill and Soniya Shaw

The initial NFT mania might have run its course, but blockchain technology shows great promise in patent management and intellectual-property protections. Yet many hurdles remain.

NFT coins floating out of a framed piece of artwork on black background

More Than a Buzzword: ESG’s Rightful Place in the Boardroom


by Maureen Gershanik

ESG is a copiously used term as of late, but one thing that’s abundantly clear about it? Just how misunderstood the movement and its objectives really are, and how it should impact the boardroom.

Abstract image of the earth covered in trees, leaves and nature

IN PARTNERSHIP

Taking an Important Case to Trial


by Sara Margolis and Steven F. Molo

MoloLamken LLP partners Steven Molo and Sara Margolis discuss how a party in a high-stakes trial might improve its chances of success, or, at least avoid disaster.

Close up view of courthouse building and word Justice

IN PARTNERSHIP

The Practice Ain’t What It Used to Be


by J. Scott Flowers

Lawyers of newer generations are taking different and often surprising approaches to their practice, but it’s important for seasoned lawyers to continue setting examples of professionalism.

Male judge in court room talking with two female lawyers

Non-Compete Agreements in the Sale of a Business


by A. Bernard Bays and John W. Kelly

In Hawaii non-compete agreements can still be enforced in the sale of businesses. Here’s a primer on how to make them enforceable.

Cartoon image of fist punching through red doors with man running on top of hand on blue background

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Beyond the Billables


by Michele M. Jochner

In a recently conducted, comprehensive study, data reveals a plethora of hidden realities that parents working full-time in the legal industry face every day.

Women in business attire pushing stroller takes a phone call

This article is a part of the Best Lawyers Corporate Law & Commercial Litigation Legal Guide. Read thought leadership from recognized lawyers and navigate a list of all honorees in the associated practice areas.

Explore the Legal Guide