Artificial Intelligence in HR Tools and Potential Pitfalls

As artificial intelligence (AI) sweeps the nation and the imagination of the public, everyone seems to be trying to figure out a way to use AI in both their professional and personal lives. Human resources professionals are no exception. Although predictive analytics (data-driven approaches to predicting outcomes) have been used in the HR sector for over a decade, we are now experiencing rapid development of AI-powered tools specifically for human resources that are changing the entire field. While Employers should be excited about the innovation and development now available, they should also be aware of the potential pitfalls in using these tools.

How is HR Using AI-Powered Tools?
Modern forms of AI are particularly useful in the human resources context when used to manage and leverage human analytics, and also to automate certain processes to increase efficiency and reduce the probability of human error. Here are some areas of human resources in which AI is being applied, along with their potential risks.

Recruiting
AI tools can be deployed by HR when applicants are first introduced to the organization. Chatbots can assist job seekers through the application process and assist them in matching their skills with open positions. AI-powered screening programs can take the load off human recruiters by sifting through large numbers of applications and resumes searching for keywords, experience, skills, and other criteria in order to identify qualified candidates that should be given closer consideration. These tools can communicate automatically with candidates about their status in the application process and even direct them towards other job opportunities. AI tools can even help HR leaders identify which candidates are most likely to succeed at an organization using predictive analytics.

Interviewing & Onboarding
AI-powered facial scanning can be used during remote interviews to evaluate the applicant by analyzing speech patterns, facial expressions, and eye movements in order to determine whether the candidate would be a good fit for the position. One of the goals in using these tools is to avoid the subjective influences that can impact a hiring decision, including pre-existing biases and prejudices.

A variety of tools are available to ease the process of onboarding new employees – whether being hired individually or as part of a larger scale orientation. Employers can deploy AI-powered chatbots or other platforms to assist new employees in navigating their first days and weeks of employment, including necessary training exercises.

Performance Management
Employers are using AI-powered analytics to assist with the process of evaluating employees.

• Though performance reviews are intended to appraise employee contributions throughout a particular period of time (e.g., a year), those same reviews should provide insight into both the employee’s current contributions and their potential contributions in the future (for example, evaluating employees for leadership or other advancement potential). As a result, AI-based tools have been developed that can assist companies in capturing all performance related data for each employee and analyzing that data in a manner that provides the company with useful conclusions concerning each employee’s effectiveness and productivity.
• Some other AI tools can assist in analyzing employee engagement on a more continual basis. They can scrape data from employee output, emails, and other digital communications, while also proactively engaging in chats or surveys with employees at various intervals, to gauge employee sentiment.
• AI can aid employers when it comes to learning and development goals by developing personalized learning plans for workers and providing the necessary tools and follow-up to ensure they remain in a continual growth mindset.
• By reviewing work patterns, supervisor feedback, and a whole host of other available data, some tools can offer the organization insights into an employee’s strengths and areas of improvement.
• The goal in utilizing these tools is to remove human subjectivity and implicit bias to the extent possible while simultaneously considering a broader array of performance data in an effort to create a more accurate, meaningful, and fair system of performance management.

Employee Retention
AI tools are also being used to evaluate existing employee engagement in an effort to improve retention. These AI applications work in a variety of ways, but generally automate the process of collecting engagement-related survey data from employees and supervisors to determine the likelihood or risk that those employees might resign. Such applications can be programmed to collect and analyze the data, and alert HR personnel whenever certain risk factors are identified. These tools can also assist with identifying employees who could be happier and better utilized on a different project or in a different role.

Efficiency and Automation
In addition to the AI tools being used to manage, track, and analyze company data, there are also AI tools that can automate certain HR functions to improve employee access to the necessary information while simultaneously reducing the number of human resources personnel required to support and assist employees when an HR issue arises. This includes AI-based chatbots that assist employees when they have basic questions about their employment or benefits such as pay, paid time off, how to initiate leave processes and even disability accommodations. These type programs allow HR personnel to focus their efforts on strategic thinking and more impactful pursuits rather than getting bogged down with repetitive and relatively simple tasks. That said, final decision-making should be left to human resources personnel who have experience in managing such matters.

Generative AI tools designed to assist HR professionals with some of the more tedious tasks, including creating job descriptions, employment policies and even employee handbooks are now readily available. While these tools may provide a foundation, HR professionals should be wary of relying on them to produce a final product. Any document produced by a Generative AI tool should be carefully reviewed, analyzed, and edited by an experienced HR professional or attorneys.

Possible Pitfalls
AI tools can be a helpful resource for employers, but they are not infallible and employers should review the tools they are considering implementing with a critical eye. AI is built by humans. The tools may fall prey to known shortcomings in technology that can result in disparate impacts on certain racial groups. For example, a scientific magazine recently reported that facial recognition software used by police departments can have difficulty distinguishing people of color from one another, resulting in improper arrests of innocent individuals. These same types of facial recognition errors could give rise to liability in the HR content if for example facial recognition software is used in the hiring process. Indeed, just recently the EEOC secured a settlement in a first-of-its-kind lawsuit involving an employer’s use of an AI recruitment tool that allegedly automatically rejected female candidates over 55 and male candidates over 60.

Unknown Underlying Analytics
Employers who utilize third-party AI-based tools provided by vendors will have little insight into what “powers” the tool. For example, if the model is a “learning” model, what data has it been trained on? Which factors are weighed more heavily? Which are weighed less heavily? Does the system have ways to compensate for or mitigate potential impacts caused by age, disability, or other protected characteristics? With the providers of AI-based tools likely unwilling to reveal the trade secrets used to create their products, employers will be at a disadvantage in the event of allegations of discrimination. Moreover, it may not always be clear if the tools have been tested or validated to ensure that they are in fact analyzing the factors of import and are doing so without creating a disparate impact on the basis of a protected characteristic, further muddying the waters.

Privacy Concerns
Whenever AI-powered tools are utilized in the employment context, potential privacy concerns can arise. Employees can be sensitive toward being surveilled – and poorly implemented monitoring processes can lead to public relations and employee relations nightmares, not to mention run afoul of a patchwork of state, federal, and international privacy laws to protect privacy.

Employers Must Remain the Final Decision-Maker
Finally, any time an employer utilizes AI-based technology to assist in its decision-making, the employer must understand that they must be the final decision-maker – not the AI-powered tool. While these tools and related analytics are powerful and can assist with accurate, bias-free assessments, these tools cannot replace independent judgment or common sense.

Conclusion
The AI-revolution is here to stay, and tools harnessing the power of AI will only become more and more commonly available and more commonly used in the employment context. Approaching these tools with caution and careful oversight allows employers to maximize their efficiency while mitigating against the potential risks.

Both Georgia law and the federal laws relevant to your workforce are constantly changing. You can count on Schwartz Rollins to continue to keep you updated on decisions that can affect your business. Please contact one of our attorneys at Schwartz Rollins, or our legal assistant, Vicki Perry at 404.844.4130 if you have questions or would like to discuss updating your restrictive covenant agreements based on this decision.