AI & HR: Vendors

Artificial intelligence is amazing.  For HR, AI promises to eliminate the tsunami of transactions that plague us, find us the best of the best candidates, identify internal threats to our organization, and simply make life easier.  Things we all want!

Artificial intelligence is also creepy and super scary at times.  While it’s creepy Netflix’s AI knows what TV shows to recommend and Amazon’s AI predicts what I’ll need when I need it, they are helpful.  Yet, the scary are truly scary.  Microsoft’s artificial intelligent Twitter bot turned into a Hitler-loving racist in less than 24 hours.  Google’s artificial intelligent photo recognition tool identified African Americans as gorillas.  The reasons Microsoft turned off its bot and Google changed its tool was because of the discrimination risk regardless of whether it was a legal or public relations risk.

When HR looks to integrate AI into its operations, the potential for the same risks exist.  Using AI or machine learning to improve our operations and identifying talent means the potential for discrimination exists.  Even when we remove data related to protected class status, the potential still exists.  It is almost inescapable, but it can be manageable.

One of the first things we need to examine is our relationship with vendors and how to appropriately use their expertise to reduce discrimination risk.  We look to vendors to deploy AI.  (HR rarely has the expertise in-house to create and release AI.)  Vendors already help us do many, many things, like manage recruitment through ATSs, create payroll through T&A systems, and manage steps in our performance management process.  We rely on vendors.  Yet, our relationships with vendors does not shift the compliance risk from us to them.  Employers are always on the hook for the decisions they make whether a vendor or technology helped. 

Here are a few things to consider in the AI vendor relationship:

Vendor, Do You Know the Law?

I spend time with data and computer scientists who are on the cutting edge of AI.  Every time I meet with them, I bring up the issue of discrimination, and they give me a dumbfounded look, like “Why would that apply to me?”  Then, they say, “Well, I’ve never seen that.”  (See the image above.)  But as the mountains of evidence that AI and machine learning can discriminate, the more vendors are going to have their feet in the fire on this topic.  Talk with vendors about the risk of discrimination, the EEOC’s requirements, and if they can intelligently respond to your questions and have plans in place to respond to your needs, SUPER!  If they don’t, be skeptical.

Vendor, Explain Thyself

Remember our geometry teachers demanding that we “show our work?”  The EEOC and other state and federal agencies already require employers do the same.  With recordkeeping requirements and investigations, employers must show how they don’t discriminate.  When employers rely on AI to assist with making decisions, the EEOC and other agencies are going to ask how the AI worked and what it did.  When the AI is a vendor’s trade secret, will the vendor share?  While vendors may not need to explain how it works in detail today, you may need them to in the future so you can respond to agency questions.  Put this in your vendor contract.  Also, require vendors to give you input and the authority to change how the AI works.

Vendor Test Strips

Finally, when AI helps you make employment decisions, are those decisions in-line with the Uniform Guidelines of Employee Selection Procedures?  Are the criteria or decision-making of the AI really job-related and a business necessity?  Are you able to explain that?  Require vendors to validate, test, and revalidate their tools to your business and your positions.  The more testing to show discrimination doesn’t exist the more helpful and compliant the decisions will be.

I want to reiterate my HR technology pledge.  I don’t want to hold employers back from using tools that help them improve.  But with every new piece of technology – just like every new employee – risk abounds.  It’s the job of an employment attorney to help make the technology just a bit safer.

Balancing Compliance

This week, I’m putting the finishing touches on Mitchell Hamline’s HR Compliance Certificate Program designed for busy HR professionals looking to increase their knowledge and practical skills.  Knowing all the professors in the program, it’ll be great!

While preparing the first course, I’ve peered into the pit of compliance despair.  It’s hard to stay on top of compliance.  There’s just so much of it, and it’s constantly changing especially this year.  State legislatures are full of bills looking to change employment law.  Cities and counties either have or are considering changing minimum wage and paid leave laws.  It’s enough to make your head spin or make you all reach for a bottle of Advil or Chardonnay.   Either way, the pit is deep, dark, and I’m pretty sure it is bottomless.  But I love it.

The key to compliance is finding the right balance.  Businesses balance regularly.  A startup doesn’t always prioritize having an employee handbook or having an attorney write their independent contractor agreements.  They are looking to grow and spending money on these items often comes later (even though for some it shouldn’t).  Large corporations generally have the capital to review processes and policies to be compliant, but even they find that compliance can be tricky.  They make decisions to balance the risk of noncompliance with the benefit to the business.

We all balance risk.  Being 100% compliant would mean that I wouldn’t speed (I have) or wouldn’t steal spoons from big events as keepsakes (I do).  I don’t intend to steal, commit murder, or discriminate against anyone based on a protected class, but I act while measuring the consequences of the risky behavior.  When I do get caught (lots of speeding tickets later), I’ve learned that noncompliance is expensive.  Noncompliance with employment law is very, very expensive.  And, ignorance to the law is never an effective defense.  Saying I didn’t know the speed limit never stopped a trooper from giving me a ticket.

For employers, ignorance doesn’t work.  We need to stay on top of the law.  You can’t dabble in employment law.  You need to be all in or find someone who is.  The speed at which we see changes in employment law is so fast Vin Diesel could join our team.  Find an employment attorney you like and trust, and spend some time with us.  If you’re interested, join us.  Take our courses, find us at our speaking events, let us buy you lunch, and ask us all sorts of questions.

Image by Zoe Laughlin