CHAUDHRI: If you think AI helped terminate you, read this
· Toronto Sun
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Whether we know it or not, most of us are using artificial intelligence multiple times a day. From the apps we use to typing in questions on a web browser, the powerful technology has been woven into the fabric of our daily activities. In a lot of ways, it is shaping how we live, the content we see online and, ultimately the decisions we make.
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Wondering about the best way to invest $1,000 or where to send your kid to camp? AI has likely been powering your research and navigating you through the pros and cons.
AI is already so seamlessly integrated into how we live, even though many of us are not directly paying for it.
AI use rampant among businesses
So, it should come as no surprise then that many large employers are super-charging their businesses with the same technology. Last week I wrote about a recent Meta lawsuit brought by 26 employees of the company. The group of plaintiffs alleged that AI was used, at least in part, to drive the decision-making process to terminate them.
This is a question that all terminated employees should be asking: Was AI used, in any way, to support the decision to let me go?
The answer will surely be complicated.
It’s no secret that large companies have utilized AI to analyze employee performance data for some time now. Not only that, AI is being used to set performance metrics and then determine which employees met the mark.
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Very easy and obvious mistakes
This could seem to some that AI has added a degree of fairness or neutrality to workplaces, but that is far from true. AI tools come with their own inherent biases and are not always trained to consider data through the lens of the law. On top of that, we have all seen how often AI can make very easy and obvious mistakes.
As an aside, a few weeks ago I was in an argument with an AI tool about how many Fridays there were in July this year. For those keeping score, I won. But only after a few rounds.
Back to the issue at hand, asking an employer if AI was involved in performance management or termination decision making can be key to complicating their case.
Employers will be reluctant to agree or admit that an HR task was handed off to a piece of technology that does not touch or feel. One that does not know our laws, one that frequently gets things wrong. It simply doesn’t feel right to let a piece of technology make a decision that will impact the life of an employee. That will resonate with judges.
In the Meta case I wrote about last week, employees alleged that the company’s AI singled them out for termination for failing to meet performance metrics while at least some of these plaintiffs were away on job-protected leaves. Of course a piece of tech that doesn’t know employment law could miss the obvious human rights issues with such a practice.
New, underestimated risk of AI
In a lawsuit, asking an employer about their AI use for employee management will likely cause them to revisit the way they intend to manage the litigation. If the AI use was ill managed, or not appropriately scrutinized by an actual human, a lot of new, underestimated risk could be added to the case.
Litigation is never as straightforward as we think. Minor, ancillary issues can become the soup de jour, the dessert and the main course of a lawsuit.
For many companies that are using AI with wanton disregard in the management of their workplaces, they may be faced with unintended consequences in the courtroom.
— Have a workplace question? Maybe I can help! Email me at [email protected] and your question may be featured in a future article. The content of this article is general information only and is not legal advice.