AI Chatbots And The Workplace: Risks And Best Practices For Employers

• Published date: 25 April 2023
• Subject Matter: Employment and HR, Consumer Protection, Privacy, Compliance, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Consumer Law, Privacy Protection, Dodd-Frank, Consumer Protection Act
• Law Firm: Torys LLP
• Author: Ms Molly Reynolds, Lisa Talbot, Rebecca Wise and Nic Wall

Consumer AI services like chatGPT, Bing and Bard are chatbot-like tools that use language processing models based on AI technology to answer questions. In recent months, these tools have exploded in popularity, being typically free, easy to access through a browser, user-friendly'and in many cases quite impressive in what they can produce in response to question prompts.

The popularity of these tools as well as their early stage of development and recent nascent regulatory action have raised a number of concerns about how employees may use these tools in the workplace. The concerns range from confidentiality and privacy to accuracy, workplace harassment and work product ownership.

We set out below key considerations for employers in creating guidance on the use of these services in the workplace.

What you need to know

• Employers should determine whether to permit any use of consumer AI services for business purposes and communicate with employees about this policy.
• Where some use is permitted, internal guidance should focus on
  • Education about the risks to individuals and the organization
  • Integration with existing workplace policies
  • Organizational and technological compliance controls
  • Impact on workplace complaints and investigative processes
• Businesses should be prepared to regularly update internal guidance on the use of consumer AI services as the regulatory landscape continues to rapidly evolve.

Understanding the risks of consumer AI tools

Although even Members of Parliament are now using chatGPT to write their questions for House of Commons speeches (and comment on its accuracy or inaccuracy in doing so)¹, regulators in Canada and abroad are raising concerns about what happens to the data that these tools collect. The Italian privacy regulator issued a ban on chatGPT in March 2023 pending an investigation into compliance with the EU privacy law, and the Canadian Office of the Privacy Commissioner opened an investigation into the same tool in April following a consumer complaint. The Federal Trade Commission is reviewing a similar complaint in the U.S.

In addition, there are broader concerns about the impact on companies when employees use these tools to assist in their job duties. Examples of these impacts include:

• Confidentiality and privacy breaches. Consider a scenario where an HR employee asks a consumer AI tool to draft a termination letter. Even where employee and company names are not included in the prompt, the parameters given to the...