By Guest commentary Monday, December 18th, 2023

By LightGabler

In the relentless pursuit of efficiency and consistency in the workplace, businesses find themselves at the forefront of an unprecedented technological revolution. Generative artificial intelligence (AI) programs like ChatGPT, GPT-4, DALL-E 2, Midjourney, and DreamStudio have emerged as powerful tools that are changing the way we work. These innovations hold the promise of streamlining tasks, from applicant screening to content creation, ushering in a new era of productivity. However, these tools come with a set of significant risks that employers must address before widespread adoption.

One of the most pressing concerns is the potential for generative AI programs to produce inaccurate content. Instances have emerged where these programs generated entirely false information or relied on erroneous sources, giving rise to the term “hallucinations.” For example, in a 2023 court case in the Southern District of New York, plaintiff lawyers admitted to using ChatGPT to research their case’s legal foundation. What unfolded was alarming — the lawyers’ affidavit contained six fabricated judicial decisions, complete with fictitious quotes and erroneous citations. 

Despite their impressive fluency, generative AI programs have the potential to produce responses that are not just inaccurate but entirely fabricated. It’s vital to recognize that the data underpinning these programs may be outdated, with ChatGPT’s training data only extending up to September 2021, rendering it unable to provide information beyond that point.

Another critical concern is the potential for bias in content generated by these AI programs. Developers work diligently to remove sensitive variables like gender, race and sexual orientation. 

However, biases can seep into the systems through the training data. Biases may persist due to historical inequalities, flawed data sampling, or other factors.

In recognition of this issue, the U.S. Equal Employment Opportunity Commission (EEOC) initiated an initiative in 2021 to ensure that emerging technologies, including generative AI, comply with federal civil rights laws. 

The initiative aims to guide all parties involved — employers, employees, applicants and vendors — to ensure the fair and consistent use of these technologies in employment practices.

The EEOC has released guidance documents such as “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures” and “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” 

Employers must study these findings and guidelines carefully to promote fair and unbiased use of AI in their hiring and employment processes.

Employers must also exercise caution when sharing confidential or proprietary information with generative AI programs. 

Many of these applications rely on machine learning techniques, where the information input into the system becomes part of the dataset that shapes future responses. 

In the eagerness to embrace these technologies, employees may inadvertently disclose confidential, protected, or personal data, potentially exposing their organizations to legal liability under privacy laws like the California Consumer Privacy Act (CCPA) and the Health Insurance Portability and Accountability Act (HIPAA).

Additionally, the use of generative AI programs raises the risk of infringing on third-party intellectual property rights. 

With limited transparency about data sources, these programs may unknowingly incorporate copyrighted, trademarked, or legally protected content into their responses.

The potential of generative AI programs is undeniable, as they have shown a remarkable capacity to enhance productivity. 

However, employers should carefully weigh the associated risks, including inaccurate content, potential biases and privacy and copyright concerns, before embracing these tools. 

When contemplating the integration of generative AI into the workplace, employers should engage in comprehensive internal discussions and seek legal counsel to navigate these uncharted waters with wisdom and care.

In a world where the future of work is constantly evolving, employers must harness the potential of generative AI while safeguarding against its potential pitfalls. 

As we embrace the digital transformation, we must proceed with responsibility, prudence and a clear understanding of the technology that is reshaping the way we work.

For questions, contact Jonathan Light ([email protected]) or Ryan Haws ([email protected]), employment law attorneys at LightGabler.