Mitigating Risk of Employee AI Use in the Workplace: Key Considerations for Policy Development; Pitfalls to Avoid

With recent advances in generative AI, more companies are exploring ways to use AI to increase productivity, proficiency, and creativity in the workplace. Even where companies do not provide AI tools to their employees, certain AI applications are easily accessible to anyone (e.g., ChatGPT, Google Bard, Bing Chat), and employees may be using AI on their own, without employer knowledge, to perform work functions. The use of AI in the workplace, whether company-sanctioned or not, brings significant risks of which employers should be aware and prepared to handle by creating policies that govern employee use of AI in the workplace.

A non-exhaustive list of some AI risks includes (1) potential discrimination claims, if employees use AI for employment-related decisions without proper oversight and safeguards; (2) potential violations of the National Labor Relations Act associated with bargaining obligations or employee monitoring; (3) the improper disclosure of company confidential information and trade secrets when employees enter information into AI tools; and (4) to copyright infringement or theft if employees use AI to generate content that could come from a third-party protected source.

A well-drafted, comprehensive policy governing employee use of AI is necessary in business today. Counsel should understand the various provisions to include to best protect clients' interests, including clearly defining the scope of the policy, setting guidelines for data privacy and confidentiality, addressing intellectual property rights, indicating whether and to what extent AI may be used in the human resources function, and clearly defining the consequences of policy violation.

Listen as our expert panel describes the risks to an organization when employees use AI and how counsel may help clients mitigate that risk by creating a comprehensive AI policy. The panel will address key drafting considerations and pitfalls to be avoided and provide best practices for implementation.

1. Overview of the use of generative AI in the workplace and company risk exposure
   1. Discrimination
   2. Intellectual property infringement and theft
   3. Disclosing confidential information and trade secrets
   4. Data privacy and surveillance issues
   5. Other possible risks
2. AI policy provisions and drafting considerations
   1. Policy purpose and scope
   2. Data privacy and security including employee privacy
   3. Company confidential information and trade secrets
   4. Employment-based decisions
   5. Intellectual property infringement and theft concerns
   6. NLRA disclaimer
   7. Consequences of policy violations
   8. Other considerations
3. Best practices for policy development and implementation

The panel will review these and other important considerations:

• What risks do companies face when employees use AI in their organizations even if the company does not provide AI tools to the employees?
• What are preliminary considerations for counsel and clients before drafting an AI policy?
• What provisions should be included in the policy to manage employee AI use in the workplace?
• What are best practices for implementing an AI policy?