By Michael J. Lotito and Jim Paretti, Littler Mendelson
It’s impossible to scan your inbox each morning without seeing a report, study or article predicting the impact of artificial intelligence (AI) in the workplace. Whether it’s the way AI and automation will transform the workplace by displacing millions of jobs and creating millions of others, the increased use of AI in things like hiring and recruitment and the potential legal ramifications, or the impact of AI and automation on industry sectors—like lawyers—that even five years ago might have seemed impervious to automation, the message is clear: a revolution is happening as we speak. In the general counsel’s office, what does that mean for you and your company, and how can you best position yourself and your organization to face what we have termed the coming TIDE™ (technology-induced displacement of employment)?
Changing the Face of the Workplace
A report issued this summer by Oxford Economics estimated that up to 20 million manufacturing jobs may be replaced by robots—roughly 8.5% of the global manufacturing workforce. But it’s not only manufacturing and production jobs, or low-skill positions that are likely to be displaced by AI (when was the last time you were in a grocery store that didn’t have a self-checkout lane?). Banks, accounting firms, law firms and health care providers are each seeing the face of their industries change.
How can you best to prepare your organization? Plan for this. It is almost certain that your company has a strategic plan, a plan for marketing, a disaster plan—consider looking at automation the same way. Start thinking now about how your workplace may be changed by automation. Review positions, consider skillsets, and ask yourself: how likely is it that some or all of the skills needed or tasks performed in a job may be automated? With respect to the workers in those positions, consider: what are we as a company doing to prepare them for this transition? Are we identifying these workers? Do we have a plan for upskilling, retraining, or identifying new opportunities for them?
The recent settlement of the month-long strike at General Motors provides an example of just how the issues relating to automation are playing out in the workforce. Among the provisions that settled the strike was the company’s recognition that automation continues to change the face of their industry. The company reaffirmed its commitment that automation would not move work out of the bargaining unit, and that workers will be able to retain higher-skilled work associated with new technology, and jointly with the union formed a committee representing management and labor equally to quarterly assess the impact of future technologies on its workplace. Whether yours is a unionized or non-unionized workplace, be prepared.
Assessing Legal Questions
Of course, one of the key roles of the general counsel’s office is to assess, plan for, and mitigate risk. Unfortunately, too often, the use of AI in the workplace raises more questions than it answers, and it’s clear that regulators have yet to come up with answers.
In recruiting and making hiring decision, AI and algorithms are being used more and more to screen resumes or determine whether a candidate is likely to be a good fit for the company, and a successful employee. These tools range from personality assessments to biometric analyses—looking at a candidate’s facial expression, body language, inflection, and the like to determine a candidate’s fate.
Supporters of AI argue that the elimination of subjective assessments will eliminate things like implicit bias in employment decision-making. Detractors, in turn, argue that “the computer did it” creates a black box where even the employer itself cannot ascertain what criteria have been used to making a given hiring decision. This is all against a regulatory landscape that is literally mired in the 20th century (the Equal Employment Opportunity Commission—which in recent years has begun to dig more deeply into the civil rights issues raised by AI and automation—still relies on guidance issued in the 1970s when it assesses an employer’s use of screening tools and tests in hiring). As counsel, ask yourself—how are we using AI in our decision-making processes, and what are we doing to validate the effectiveness of the decisions being made by AI? And, if challenged, can we “unpack” a decision we’ve made using AI to justify its legality?
Managing the Company’s Legal and Compliance Obligations
Finally, consider the role AI plays in both the management of litigation and the transactional side of your company’s legal department. Increasingly, routine legal work is being outsourced to AI—things like document review, due diligence, contract assessment, and even basic legal research are being handled by AI. This reduces the human time spent on these tasks, which may now be freed up for higher-level and more productive work. But, as with the use of AI in hiring decisions, there are perils to be aware of and navigated. If yours is an industry that is heavily regulated where an audit “paper trail” may someday be important, ask yourself if your systems are monitored and maintained such that bases for transactions and decisions can be evaluated and justified perhaps years down the road.
The C-Suite relies on the GC’s office in almost every decision it makes. While automation and AI can increase efficiencies and decrease costs, the importance of understanding how AI works, training legal staff as to both the advantages and potential downside of AI-driven legal practice, and remaining fully engaged to ensure that the general counsel’s office does not become over-reliant on technology is critical. With both the technological and legal landscapes changing at what seems like an exponentially faster rate every year, now more than ever it is critical to keep abreast of legal developments, examine and challenge the risks and benefits of AI and automation, and above all, prepare for the coming TIDE.
Michael Lotito is a shareholder with Littler Mendelson and co-chair of the firm’s Workplace Policy Institute. He advises clients and policy makers on emerging workplace issues, new legislation and shifting regulation – helping them respond to changes in labor and employment law while also shaping answers to future challenges. Lotito is co-founder of the Emma Coalition, an organization named in honor of his granddaughter that is dedicated to helping prepare American businesses and government for TIDE.
Jim Paretti is a member of Littler’s Workplace Policy Institute and serves as Treasurer of the Emma Coalition. With over two decades of experience working with federal legislators and policymakers, he has in-depth political and policy knowledge of labor, pension, healthcare and employment law, regulations and legislation. Prior to joining Littler, Paretti was chief of staff and senior counsel to the acting chair of the Equal Employment Opportunity Commission.