We are in an era where managerial decisions are increasingly automated, including those involving human resources. That effect will only increase as time passes and artificial intelligence becomes more capable. Should New Jersey get ahead of the curve and create guardrails to protect employees from computer-driven decisions that can change their lives?

If you feel that your employer has taken unlawful acts against you, you may be entitled to compensation for economic losses, emotional distress, counsel fees/costs, and potentially punitive damages. If you would like to discuss your situation with a lawyer, please contact our office to arrange a consultation.

What is Artificial Intelligence (“AI”)?

AI refers to computer systems that perform complex tasks previously accomplished through human reasoning, creation, and decision-making. These tasks could include recognizing speech, making decisions, problem-solving, or understanding emotions.

AI tries to copy how we think and make decisions through the use of data, statistical models, and algorithms (step-by-step procedures or instructions designed to solve a problem or complete a task), according to Science News Today. AI algorithms gather information from available data, make changes based on experience, and improve their performance over time.

How Might AI Affect My Work?

AI may substantially impact Americans’ jobs, especially those in “white collar” roles. Employers are expecting employees to rely more on AI in the hopes they’ll “do more with less” and make organizations more profitable while cutting expenses. Those expenses will include payroll.

By one estimate, about 10,000 US jobs were lost due to the use of AI during the first seven months of this year. The World Economic Forum predicts that 92 million jobs may be lost worldwide due to AI by 2030, but 170 million new jobs are expected to emerge as a result. Those future opportunities will involve more physical than mental work. They include agricultural work, delivery drivers, sales positions, construction, and food processing.

How is AI Used in Human Resources?

IBM, a computer and software company, offers AI solutions, including those that address human resources (HR). According to the company,

AI in HR deploys various technologies capable of analyzing vast troves of data in real-time, recognizing patterns, generating content, and simulating human-like interactions. These capabilities are changing how HR departments operate, allowing them to move from primarily administrative functions to more strategic roles within organizations...

In the coming years, the use of AI will impact HR departments in two significant ways: First, by streamlining HR operations and leveraging workplace data to improve the talent planning and management process. Secondarily, AI will require HR departments to foster a change-minded culture capable of embracing new ways of working…

IBM states one area they can help employers with is “performance management”:

Performance management processes can be augmented through AI-enabled continuous feedback systems. These systems facilitate regular performance conversations and track feedback patterns, improving the regular review process. Performance analytics tools identify patterns across teams and departments, providing insights that might be difficult to discern manually. These AI-powered enhancements create more dynamic, data-driven performance management approaches to better support employee development and organizational success.

…IBM used an AI agent to help HR managers through the quarterly promotion process. The agent automated the collection and formatting of data across multiple systems for as many as 17,000 employees, significantly reducing HR’s administrative burden.

Some organizations use AI not just to gather and organize data to base HR decisions, but rely on it to make decisions concerning hiring, pay cuts and increases, demotions and promotions, discipline, and job losses. Widespread use of AI is just beginning. Its capability and management’s trust in it will grow over time. Some of these decisions are difficult. Managers may be more than happy to have AI decide for them.

Should States Regulate the Use of AI?

The Trump administration doesn’t want the federal government to regulate AI, but that doesn’t mean states cannot. California’s Civil Rights Council has announced finalized rules concerning discriminatory employment decisions and the use of AI. These new regulations fall under one of the state’s fair employment practices laws.

They clarify that employers cannot use automated-decision systems (ADSs) to make illegally discriminatory employment decisions against applicants or employees in violation of state law, including the following:

• Employers can’t use online applications to limit, screen out, rank, or prioritize applicants based if they have a disparate impact on an applicant’s protected basis (disability, race, color, sex, religion, etc.) unless the technology is job-related, consistent with business necessity, and allows for an applicant to request an accommodation
• The use of an ADS to measure skill, reaction time, dexterity, or other abilities or characteristics may discriminate against those with specific disabilities and other legally protected characteristics. In these circumstances, an employer may be required to accommodate the job applicant reasonably
• An ADS analyzing an applicant’s facial expressions, tone of voice, physical characteristics, or behavior may unlawfully discriminate due to the person’s disability, so they may need to reasonably accommodate them
• California law prohibits medical or psychological exams before a job offer. This now includes those given by an ADS, including those asking for information likely to result in disclosing a disability
• Liability for ADS-based illegal discrimination extends to the employers’ agents, potentially including those providing the ADS

The regulations don’t require ADSs to be tested for illegal bias, but they suggest that if testing is done, results could be used as an affirmative defense against a discrimination claim. It’s doubtful anything like this will be enacted at the federal level, but New Jersey job applicants could benefit from these kinds of protections.

Has Your Employer or Potential Employer Illegally Discriminated Against You?

Do you have questions or concerns about how AI may have been used illegally to deprive you of a job offer, pay raise, or promotion? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.