Amid a “Wild West” for AI regulation, lawyers from Littler encourage companies to mind existing laws.
AI is flooding into Canadian workplaces—especially in the technology sector, where startups are racing to adopt AI to do more with less and build faster.
Tech employers and current and prospective workers are now using AI to do everything from generate their resumes to review potential candidates and guide decisions about employees.
The death of Canada’s proposed Artificial Intelligence and Data Act last year has left domestic businesses in somewhat of a legal vacuum. As Toronto-based employment lawyer Monty Verlint put it, “It’s a blessing, and a curse.”
“We’re not sure how it’s going to all play out, but it’s a good idea to take proactive measures.”
Monty Verlint, Littler
“On the one hand, we don’t need to worry about legislation and regulatory requirements in terms of certain AI systems in the workplace, but on the other hand, there’s a lack of regulation, lack of clarity, lack of [guidance around] what’s accepted, what’s not accepted, [and] what would be considered appropriate,” the Littler partner told BetaKit in an interview.
At the same time, existing Canadian human rights and privacy laws—the latter of which are expected to change shortly—still apply to how companies can deploy AI in the workplace. Both can vary across the country’s provinces and territories.
Verlint’s colleague Niloy Ray, who works in Minneapolis as co-chair of Littler’s AI technology practice group, told BetaKit that navigating the “patchwork” of regulation that does exist in the United States today is one of the biggest pain points for companies right now.
For businesses with employees across a variety of jurisdictions, Verlint said, “It’s always a good idea to have a single policy to be able to apply to the most stringent measures.”
That entails meeting legal requirements—including developing, documenting, and refining policies to govern proper and improper use and ensure transparency, testing of the AI systems in question for bias and other risks, and training for the employees using them. In certain jurisdictions, like Québec, some of those requirements can be more onerous. Being transparent with employees, prospective hires, and customers about how they are using AI is important.
“Employers have to continue being reasonable, as they were in the pre-AI world,” Ray said. “The responsibility of due diligence still lands with the employer.”
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On the employee side of the equation, Ray said tech workers should be mindful that “they have the same rights to not be discriminated against, and to not have their personal information be unfairly accessed or gathered,” as they always have.
“We’re still in the infancy stage here, when it comes to what could happen [and] what claims could be made,” Verlint said. “It’s kind of like the Wild West in a way. We’re not sure how it’s going to all play out, but it’s a good idea to take proactive measures to try to prepare for what could happen in the future.”
Verlint advises startups to implement reasonable policies that govern appropriate use of AI in the workplace.
He said they must take the country’s existing human rights and privacy laws into account to mitigate the potential of becoming the defendant in future lawsuits or administrative complaints, and facing the associated financial and reputational consequences.
“My advice to those tech companies [is], ‘let’s not be the first test case here,’” Verlint said.
Feature image courtesy Unsplash. Photo by Israel Andrade.