Employers of all sizes should have a written AI policy. Even small businesses are using AI, even if they do not know they are, through chat tools, scheduling software, applicant screening platforms, productivity tools, customer service systems, and vendor products. Without a clear policy, employers increase the risk of inconsistent practices, confidentiality problems, discrimination issues, and avoidable liability.
At a minimum, an employer’s AI policy should address:
(i) what AI tools are approved;
(ii) what business uses are allowed;
(iii) what data cannot be entered, including personally identifiable information and trade secrets;
(iv) when human review is required;
(v) when AI is prohibited for employment decisions, to help prevent discrimination;
(vi) how accommodations are handled when use of AI creates disadvantages due to disability, such as when AI monitoring software flags an employee as low performing when the real issue is a disability, or when an applicant is screened out based on an answer tied to a disability that could be reasonably accommodated;
(vii) what records are kept, along with a statement that employees have no reasonable expectation of privacy in connection with company AI use;
(viii) how vendors are vetted for their own use of AI, which may create downstream liability for the company;
(ix) who is responsible for compliance.
A practical AI policy does not need to be overly technical or overly long. It just needs to set clear rules so the company can use AI thoughtfully, protect confidential information, reduce employment risk, and create accountability before problems arise.
--Adam K. Treiger, Esq., Vice-President of the Board of the East Ventura County Employers Advisory Counsel
