For In-House Counsel: 5 Essential Tips for Implementing AI In the Workplace

The emergence of Generative Artificial Intelligence (Gen AI) tools presents a transformational opportunity for companies to achieve greater efficiencies in their workflows, but it also presents new headaches for in-house counsel who are tasked with mitigating risk and ensuring regulatory compliance of business practices.

For example, the introduction of Gen AI into the process of screening potential job candidates offers enormous productivity gains in the corporate HR function, but it also opens up employers to legal and regulatory exposure.

“Employers embracing artificial intelligence and machine learning tools to automate time-consuming tasks … must ensure those tools don’t engage in ‘algorithm drift’ that results in improper bias,” Law360 reported on February 27, 2024.

Artificial Intelligence In the Workplace Has Noteworthy Risks for In-House Counsel

Other examples of where AI use in the workplace has General Counsel on the alert include potential violations of employees’ privacy with chatbots that simulate human conversations and allegations of improper recording of business meetings with AI tools.

LexisNexis recently published a comprehensive practice note, Artificial Intelligence in the Workplace: Best Practices, written by practical guidance authors Joseph O’Keefe, Edward Young and Hannah Morris, attorneys with Proskauer Rose LLP.

The authors identify some of the noteworthy risks to employers who embrace the use of Gen AI in the workplace and then suggest five important best practices for in-house counsel to consider:

Train employees on Gen AI use in the workplace

If an employer permits its workers to use Gen AI for work-related purposes, it should train them on how to use the technology in a way that protects the employer’s business, legal and other interests. “For example, it would be beneficial to inform trainees that they must still always comply with other employer policies, such as a policy against harassment and discrimination,” they write. “Employers could conduct training either in-house or through a third-party vendor.” A Lexis+ Practice Video, Artificial Intelligence in the Workplace, provides an overview of how AI is being used in the workplace.

Incorporate Gen AI into new and/or existing employer policies

It’s important for employers to communicate their stance on Gen AI explicitly to employees, either through a handbook or standalone policy. Employers can add relevant Gen AI language into a new policy or incorporate such language into an employer’s existing electronic systems policies. LexisNexis Practical Guidance offers —a sample policy for use by in-house counsel: Artificial Intelligence (AI) Driven Tools in the Workplace Policy.

Approve Gen AI tools before use

An employer should make clear that employees “should only use Gen AI to enhance or assist in the performance of job-related tasks by enhancing productivity, efficiency and decision-making,” write the authors. Employers should also consider implementing an approval process whereby employees report to a specific point person to request the use of — and receive approval for — the Gen AI tool.

Continuously monitor Gen AI use

Any employer should regularly review their policy that sets parameters on Gen AI in the workplace to evaluate whether the measures in place are working or need to be revised based on employee non-compliance or reduced productivity. Moreover, given how quickly Gen AI laws are being proposed and passed at the state level, employers should make sure their policies comply with changing jurisdictional requirements. GCs can monitor these developments with the Artificial Intelligence Legislation Tracker on Lexis+.

Implement a reporting procedure and ensure supervisors document non-compliance

Employers should develop a reporting procedure for all employees “to report any suspected violations of the Gen AI policies, possible data breaches, an AI system failure or any instances where the AI tool generated erroneous, discriminatory of harassing output,” write the Proskauer Rose attorneys. The employer should also notify employees that it may impose disciplinary consequences, up to and including termination, for employees who violate employer policies.

LexisNexis recently hosted an insightful webinar, AI in the Workplace: Key Issues for In-House Counsel, that addressed key risks associated with the use of Gen AI in the workplace and the unique duties that in-house attorneys have in assessing the company’s use of AI. Watch AI in the Workplace: Key Issues for In-House Counsel here on-demand.

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