The past decade has ushered in significant advances in artificial intelligence and data analytics tools that help bolster business operations and efficiency. Employers are increasingly using AI- and analytics-driven tools to help make important human resource decisions, and these tools have the potential to revolutionize many employment processes, including recruitment, hiring, training and retention, as well as assessing employee productivity and performance. Leveraging these tools in the right way can help employers expand their candidate pools, reduce human biases and improve their hiring and training processes.

It’s an exciting time in this space, and the use of AI in HR decisions is growing exponentially. Equal Employment Opportunity Commission Chair Charlotte Burrows opined that more than 80% of employers use AI to make employment decisions. Overall, 83% of U.S. employers are using AI in HR decisions, according to Mercer’s Global Talent Trends 2019 survey. Littler’s 2022 Annual Employer Survey found that 69% of organizations surveyed are deploying AI and data analytics in their recruiting and hiring process – primarily to screen resumes or applications (67%) and identify candidates (49%).

AI tools offer many benefits and opportunities but, as with any emerging technology, employers must consider the challenges and risks. AI-driven tools have spurred legislation aimed at regulating their use, especially in three key areas of concern: accessibility, discrimination and privacy. As employers incorporate these tools into their HR departments, it’s critical for them to do so with purpose and compliance in mind.

Helping Employers Navigate the AI Legal Landscape

As AI becomes more prevalent, federal, state and local governments are introducing laws and regulations to address potential biases associated with AI solutions. The current legal landscape is a challenging one for employers. AI is constantly evolving and laws vary among federal, state and local jurisdictions. The use of remote workers makes complying with AI-focused regulations and legislation even more challenging.

When developing, purchasing or using AI-driven tools, employers must be aware of legislation and regulations governing their use of those tools with applicants or employees. Such laws already exist in several jurisdictions, including California, Illinois, Maryland, New York City, Texas and Washington, D.C., in addition to Title VII and the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission’s (EEOC) Artificial Intelligence and Algorithmic Fairness Initiative, adopted in October 2021, is a “Technical Assistance” document that provides insight into employers’ obligations to comply with the ADA when using AI-powered tools. Massive enforcement efforts from the government are not there yet, but experts say they are coming. In addition, the European Union has issued its own proposed regulation governing the use of AI. Wandering workers require employers to pay attention to all legislation and regulations no matter their location.

Employers that engage their legal departments and partner with outside counsel to evaluate AI-driven tools designed to assist in making HR decisions will be best prepared for current and future challenges.

Our AI Experience, Knowledge on Your Side

As the world’s largest law firm focused solely on legal and regulatory issues affecting employers, Littler is well positioned to help businesses confront the unique challenges that AI in HR decision-making brings. Our attorneys help navigate the complex and ever-evolving employment and labor law issues involved in integrating AI-driven tools into your organization. Our team regularly partners with the world’s largest employers and innovators to help find solutions to their biggest AI challenges.

Our team is comprised of innovative and knowledgeable practitioners, including data scientists, a former software developer, economists and a former EEOC official who are well-known and respected by leaders in the AI field. Shareholder Marko Mrkonich was the only management-side lawyer to testify before the EEOC Commissioners during their 2016 public hearings on the impact of data analytics on employment laws. He has co-authored two well-respected law review articles on the subject: “Big Data” and the Risk of Employment Discrimination” (Oklahoma Law Review, 2016) and “Applying Old Rules to New Tools: Employment Discrimination Law in the Age of Algorithms” (South Carolina Law Review, Winter 2019).

At the Forefront, Shaping the Future of AI

Littler has been at the forefront of the AI revolution, leading and helping to shape the future of AI since 2015.

Littler is involved on the ground and behind the scenes, helping employers successfully implement AI-based initiatives. We understand how federal, state and local governments work, and we’re there whenever employers need an advocate. Working closely with Littler’s Workplace Policy Institute, key members attend hearings, meet with regulators, and provide comments on pending regulations and legislation and we regularly publish comprehensive analyses, white papers and articles that address the key issues facing employers. Through our relationships with regulators, legislators and product developers creating AI tools, we are helping to direct the future of the industry.

How We Can Help You

Littler’s team provides cross-functional advice to business, product and HR clients on the burgeoning use and regulation of AI-driven tools and processes. Because the world’s largest employers regularly ask us to help solve their AI challenges, we know the critical questions and answers in this space, including:

  • What can employers consider or not consider?
  • How can organizations mitigate risk around bias and discrimination?
  • What privacy risks exist and how may employers abate them?
  • What are the differences when operating globally vs. domestically?

Littler’s team can help clients implement AI in HR processes, including:

  • Creating and implementing AI development and use policies;
  • Selecting, testing and deploying AI tools across the employment life cycle; and
  • Navigating the compliance requirements and litigation risks of new and proposed AI regulations in the U.S. and abroad

Additionally, Littler’s Knowledge Management group tracks AI-related legislation daily, in the United States and globally.