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Introduction: The Importance of Considerations for Employers using AI

The prevalence and accessibility of artificial intelligence (AI) continue to grow, raising important considerations for employers regarding its use by their employees. To mitigate potential liabilities, deploying internal AI policies is a proactive approach. This article emphasizes the significance of employers carefully drafting and implementing such policies. In future articles, we will explore the use of AI in software development, intellectual property matters, confidentiality concerns, and other related issues.

The Definition of AI

As the modern workplace increasingly relies on AI technology for daily tasks, it becomes necessary to understand what AI entails. While there is no universal definition, AI generally refers to computer technology capable of simulating human intelligence. This enables the analysis of data, conclusion drawing, pattern recognition, prediction of future behavior, and the ability to learn and adapt over time. Essentially, AI is computer software programmed to execute algorithms. An example of AI is generative AI, which utilizes unsupervised learning algorithms to create new digital content based on existing content, such as images, videos, audio, text, or code.

Employer Considerations when Implementing AI Policies

Employers face the challenge of managing AI usage by their employees. In the context of healthcare IT companies, employees can be broadly divided into three categories: (1) those involved in administration, (2) those in healthcare technology services, and (3) those in software development. In this article, we focus on considerations specific to developing an AI policy applicable to the administrative side, including human resources, the C-suite, and marketing. Later editions of this series will address concerns related to technology services and software development.

Human Resources and AI

AI is increasingly utilized in human resources for tasks such as recruiting, hiring, and employee onboarding. While automating these processes through AI can improve efficiency, employers must address practical, legal, and regulatory challenges. One particularly contentious use of AI is in the screening, interviewing, and hiring process. Although AI can streamline these processes by ranking, eliminating, and selecting candidates with minimal human intervention, employers must consider the plethora of federal, state, and local anti-discrimination laws that govern this area. Violating these laws can be detrimental to a business.

Despite claims that AI reduces bias in decision-making scenarios, it is essential to remember that AI is only as good as its data set. AI may unintentionally consider factors that employers are legally prohibited from considering during the hiring process, such as age, race, religion, sexual orientation, or genetic information. This occurs when AI tools gather information from the internet, social media, or public databases. Furthermore, AI recruiting programs may unintentionally perpetuate past discriminatory practices based on the data set and algorithms used.

Employers face not only discrimination claims but also disability discrimination claims. The Equal Employment Opportunity Commission issued a Technical Guidance on AI decision-making tools and algorithmic disability bias. The guidance identifies three ways in which an employer using these tools may violate the Americans with Disabilities Act (ADA): failure to provide reasonable accommodation needed for accurate algorithmic rating, using a tool that screens out qualified disabled individuals, and making impermissible disability-related inquiries and medical examinations. Though no federal law specifically regulates AI use in recruiting and hiring, it is crucial to evaluate applicable state and local laws and regulations when developing internal policies. Monitoring changes to these laws is necessary to ensure compliance and protect businesses from liability related to discrimination claims.

AI and the C-Suite

Higher-level concerns emerge when considering the use of AI by the C-suite. Confidentiality and trade secret protection are major considerations. When employees input confidential information into generative AI programs, it becomes part of the AI program’s data set, potentially accessible to external parties. This poses a substantial risk to businesses.

The problem intensifies when trade secrets are involved. Preserving the secrecy of information plays a crucial role in trade secret protection. Once confidential information is input into an AI program, it is likely no longer considered a trade secret. This jeopardizes businesses that heavily rely on trade secrets or confidential information. Setting boundaries and rules on the use of AI programs, particularly by C-suite members who have access to sensitive information, is therefore vital.

AI and Marketing

For the marketing team, using AI programs entails lesser risks. Generative AI tools can significantly aid and save time for marketing departments. In the case of healthcare IT companies, the marketing team is generally distanced from confidential patient information. While certain policies should govern the appropriate use of generative AI tools like ChatGPT, restrictions are of lesser concern for employers in this context.

It is essential, however, to consider potential intellectual property issues, particularly relating to copyright or trademark ownership, before allowing the marketing team to use AI tools. Addressing these concerns beforehand helps prevent future complications and costly litigation.

Conclusion

As AI programs become increasingly common in the workplace, it is imperative for employers to implement internal policies to manage employee usage effectively and avoid costly liability. These policies are just one aspect of ensuring proper onboarding and use of AI tools within a business. Subsequent articles in this multi-part series will highlight other potential concerns related to AI implementation.

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