AI in the Workplace

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Artificial intelligence (AI) is rapidly transforming how workplaces operate in Ontario. AI tools are radically changing how employers make decisions regarding recruitment, performance management, and workplace investigations. It is vital that moving forward, Ontario employers understand both the legal and practical implications, and risks of AI in the workplace.

Under common law, employers owe a duty of good faith to their employees by basing all employment decisions on accurate information. With the presence of AI, the way in which these employment decisions are made is changing. Employers may now be relying on AI generated information to inform staffing-related decisions. In doing so, the employer risks breaching its duty of good faith if the AI generated information is inaccurate.

For example, an employer chooses to use an AI tool to assist with an employee interview during a workplace investigation. The AI generated information may contain errors based on incorrect interpretations of tone, or failure to capture non-verbal cues. Relying on the AI in this scenario may result in conclusions that are misleading. As such, it is imperative that human oversight be conducted.

Employers must also ensure that AI in the workplace aligns with existing internal policies, employment contracts, and collective agreements. Employers with unionized employees should be particularly aware of grievances that could arise over whether the presence of AI monitors infringes on privacy rights. It is therefore recommended that before implementing AI systems in the workplace, employers should consult with their legal counsel to discuss the risks, if any, before deployment.

Lastly, AI systems are only effective to a certain extent. Bias and discrimination can arise in various ways. For example, if an employer chooses to adopt AI tools throughout the recruitment or training process, it is possible for AI to inadvertently favour candidates with traditionally gender or demographic-specific traits. Accordingly, it is crucial for employers to exercise caution when relying on AI-generated information. Employers are encouraged to incorporate tools, such as the Human Rights AI Impact Assessment, to ensure that the use of AI is not contravening Ontario’s Human Rights Code.

Key Takeaways for Employers

AI can deliver real efficiencies within the workplace, but it also comes with legal impacts that employers cannot afford to ignore. To ensure employers are evolving with the times and maintaining compliance, they should:

  • Treat AI as a component to a broad decision-making process, one that is an accessory to human judgment;

 

  • Involve HR and/or legal teams in the governance of AI tools; and

 

Implement controls that limit AI to an extent to not infringe on employees’ rights or privacy