The Impact of AI and Employment Law
By: Amir GhahremanIn this blog post we will discuss certain issues arising from the intersection of AI and employment law. These include the potential for job duty modifications, implementing AI-related workplace policies, and legislative trends in response to the growing use of AI systems.
AI and Employment Law
The increased use of artificial intelligence at organizations raises both existing and fresh legal issues in employment law. AI is a new form of technology but does not represent the first time that technology affecting the workplace has been introduced.
Existing Issues
Two existing issues arising from this new technology include workplace modifications due to increased use of AI in organizational processes and implementing AI-related workplace policies.
Just as the adoption of computers and smartphones resulted in certain workplace modifications, so will the use of AI, resulting in changes to how employees perform many tasks and therefore requiring employers to manage any workplace modifications in accordance with employment laws. New technologies also often require new workplace policies governing their usage so the important actions for employers will be to design reasonable policies regarding workplace AI usage and then to properly implement such policies.
New Issues
New issues arise from AI-specific legislation and certain inherent risks in using AI, particularly the risks of bias in AI systems. AI systems can be biased in their decision-making due to biased training data and/or programming errors. Compounding these risks is the fact that it can be more difficult to detect or identify these biases in AI systems in comparison to purely human-made decisions.
Governments are aware of these risks and have begun to enact legislation to address them.
BC has not yet enacted AI-specific legislation applicable to employment law however we can look to Ontario and farther abroad for indications of what will likely follow in BC. Ontario’s Working for Workers Four Act, 2024 specifically addresses artificial intelligence in the hiring process by amending the Ontario Employment Standards Act, 2000 to require employers to disclose the use of AI in the screening, assessment or selection process for applicants to a job position, effective January 1, 2026.
Although the Ontario rules will only initially require disclosure of AI use, the EU and certain states in the US are already subject to significantly more detailed AI legislation which go beyond the hiring process. These are relevant not only because they will likely impact how Canadian jurisdictions will proceed with their future legislation, but also because such EU and US legislation will already apply to Canadian-based employers who use AI with respect to any employees they may have in such foreign jurisdictions.
Going forward, we are likely to see increasingly detailed AI-specific legislation which will impact BC employers at the hiring stage and beyond.
Key Takeaway for Employers
Employers should make efforts to remain current on developments in AI-specific legislation both in their home jurisdiction and in any other jurisdictions where they may have employees or in which they may be recruiting. Employers should adopt and properly communicate their policies regarding AI use by employees and manage any job modifications or employment terminations in accordance with applicable employment laws.
For a more in-depth article on AI issues in Employment Law, click here: The Impact of AI and Employment Law
If you would like more information on this topic, or require assistance with drafting AI policies for your workplace, please contact any member of our Employment and Human Rights Group.
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The Court of Appeal provided guidance recently on how CERB payments should be treated with respect to wrongful dismissal damages. In Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 the Court of Appeal found that CERB payments do not concern employers in wrongful dismissal claims, as it is a benefit provided to workers to offset the impact of the COVID-19 from the authorities administering the income assistance program, not the employers. Therefore, taking into account policy considerations, the Court of Appeal deemed it would not be keep with the intention of Parliament to deduct CERB payments from wrongful dismissal damages.
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The coronavirus pandemic has brought so much uncertainty with it and has turned the world of work on its head. Every employer is required to have a COVID-19 Safety Plan that assesses the risk of exposure at their workplace and implement measures to keep their workers safe. On November 24, 2020, BC issued a Public Health Order (the “Order”) requiring the use of masks in all public indoor spaces in the province. Since this Order, our Group has and continues to receive a lot of questions from business owners and employers on the mandatory masking order, in particular, what happens if an employee refuses to comply with an employer’s COVID-19 Safety Plan including an unwillingness to wear a face mask?
In this blog post, we consider whether an employer can terminate an employee’s employment for cause for refusing to wear a face mask while at work.
