As artificial intelligence (AI) tools become increasingly integrated into hiring and other workplace decisions, businesses must navigate a rapidly evolving legal landscape regulating the use of AI. To stay compliant and build trust within the workforce, employers can consider the following best practices for responsible AI deployment in employment contexts.

  • Maintain human oversight.  Use AI as a tool to assist, not replace, human judgment.  Require managers to confirm AI outputs before relying on them to make employment decisions, including for hiring, promotions, work allocation, compensation, and discipline.
  • Promote transparency.  Notify applicants and employees when AI tools are being used to evaluate them.  Consider explaining the extent to which managers or human resources (HR) will review the AI tool’s outputs, how the AI works, how it will impact decision-making, and the data the AI tool uses.
  • Review for potential bias.  Periodically audit the outputs of AI tools for potential bias.  For example, compare AI decisions with human decisions, explore whether similar candidates—except for a protected attribute like gender, race, or ethnicity—are receiving different outcomes, and conduct disparate impact analyses.  Document any bias testing for use in defending against potential discrimination claims.
  • Train key personnel.  Provide training to HR professionals, hiring managers, and others involved in deploying or interpreting AI outputs, ensuring they understand the tool’s capabilities, limitations, and compliance obligations.  Training can include topics such as how the AI works, recognizing when AI outputs are inaccurate or incomplete, and how to override or edit AI-generated content.  Encourage employees to escalate any issues or inaccuracies in AI outputs.
  • Maintain data privacy and security.  Implement safeguards to protect the data fed into any AI tool, particularly any sensitive or personal employee information.
  • Ensure records retention.  Retain records regarding AI use in employment decisions, in accordance with data retention policies or as required by applicable laws.
  • Screen AI vendors.  Carefully vet third-party AI providers to ensure their tools meet legal standards and provide relevant documentation, such as to confirm steps taken to validate the tool and mitigate bias.
  • Monitor legal developments.  As the AI regulatory environment is rapidly evolving, stay up to date on federal, state, and local laws that regulate or impact the use of AI in the workplace.

If you have any questions concerning our practices, please contact the following members of our firm: Lindsay Burke, Carolyn Rashby, and Michelle Barineau York.

Tags: Artificial Intelligence (AI)
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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with…

Lindsay Burke co-chairs the firm’s Employment Practice Group and regularly advises U.S., international, and multinational employers on employee management and culture issues and international HR compliance. She is a key member of the firm’s Institutional Culture and Social Responsibility practice, working together with white collar colleagues to conduct culture assessments, internal investigations of executive misconduct, and civil rights and racial equity audits and assessments. Lindsay has been at the forefront of the changing workplace issues impacting employers in the U.S. in the last decade, including #MeToo, Covid-19, and the renewed focus on diversity, equity, and inclusion. She frequently advises employers in relation to their processes and procedures for investigating complaints of discrimination, harassment, and retaliation and trains executive teams and board members on culture risk and the lawful implementation of DEI programs.

Lindsay also guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

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Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. Carolyn’s approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

As a senior member of Covington’s Institutional Culture and Social Responsibility Practice Group, Carolyn has co-led significant investigations into workplace culture, DEI issues, and reports of sexual misconduct and workplace harassment.

As an employment lawyer with over two decades of experience, Carolyn focuses on a wide range of compliance and regulatory matters for employers, including:

Conducting audits regarding employee classification and pay equity
Advising on employment issues arising in corporate transactions
Strategic counseling on a wide range of issues including discrimination and harassment, wages and hours, worker classification, workplace accommodations and leave management, performance management and termination decisions, workplace violence, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies
Drafting employment contracts and offer letters, separation agreements, NDAs, and other employment agreements
Advising on employee privacy matters, including under the California Consumer Privacy Act
Providing guidance on use of AI in the workplace and development of related policies
Leading anti-harassment and other workplace-related trainings, for employees, executives, and boards

Carolyn also works frequently with the firm’s white collar, privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups.

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Photo of Michelle York Michelle York

Michelle Barineau York advises U.S. and multinational employers on a broad spectrum of employment law matters. She regularly counsels employers on wage and hour compliance, employee classification, pay equity, and leave-related issues, and she drafts and negotiates key employment documents, including employment agreements…

Michelle Barineau York advises U.S. and multinational employers on a broad spectrum of employment law matters. She regularly counsels employers on wage and hour compliance, employee classification, pay equity, and leave-related issues, and she drafts and negotiates key employment documents, including employment agreements, workplace policies, and separation agreements. Michelle brings substantial experience investigating workplace complaints and frequently partners with white collar colleagues to conduct sensitive internal investigations.

Michelle guides employers through hiring, performance management, and employee terminations, as well as workforce change strategies, including reorganizations, reductions in force, and WARN compliance. She also provides practical, business-focused advice on workplace issues impacting employers, including remote work, employee privacy, and workplace culture, and she offers leading‑edge guidance on the use of artificial intelligence in the workplace.

Michelle helps clients navigate matters involving harassment, discrimination, non-competition, and other issues arising under state and federal employment laws including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. She relies on her experience as an employment litigator to advise clients when responding to agency charges and demand letters, including whistleblower retaliation complaints, and frequently interacts with the Equal Employment Opportunity Commission, state and local equal employment opportunity agencies, and the Occupational Safety and Health Administration.

Michelle works closely with colleagues in employee benefits and executive compensation and corporate groups to address employment matters arising in mergers, acquisitions, and other strategic transactions, and she regularly collaborates with California‑based colleagues on matters implicating California employment law.

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