Counseling Employers on the Legal Implications of Artificial Intelligence and Robots in the Workplace

By: Richard R. Meneghello, Sarah J. Moore, and John T. Lai, Fisher & Phillips LLP

This article provides guidance and best practices for counseling employers on the legal implications of integrating artificial intelligence (AI) and robots into their workplaces.

Reductions in Force Due to Artificial Intelligence and Robotics

Thanks to recent technological advances, AI algorithms and robots are developing the sophistication to displace human employees, causing many employers to engage in mass layoffs and reductions in force. For instance, Goldman Sachs recently laid off nearly 600 equity traders whose work has largely been supplanted by automated trading programs and a team of computer engineers.¹

As employers continue to pursue disruptive technologies like AI and robotics that can reduce workforces, unions and employees will mount legal challenges in an effort to protect their positions. To ensure employers can implement these technologies with minimal repercussions, you should assess their risks and liabilities and help them put together a strategic plan. Consider the following measures to avoid liability from layoffs caused by AI and robotics.

• Request a seat at the table to discuss integrating robotics and AI automation. Counsel your human resources and inhouse counsel contacts to request a seat at the table when their organization discusses how to integrate robotic and AI automation into the workplace. With your help, your contacts can assist their organization with strategic plans that implement new technologies while limiting the company’s exposure.
• Consider a voluntary ADEA-compliant termination plan. Before recommending that an employer carry out an involuntary reduction in force (RIF), encourage it to adopt a voluntary termination strategy, such as offering employees separation agreements that release the employer from all claims in exchange for a monetary sum. Be sure to adhere to applicable state and federal laws, such as the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA) when separating employees age 40 and over. Additionally, encourage employees to consult with an attorney before accepting the offer to minimize the risk that the separated employee will be able to subsequently invalidate the agreement on the grounds of coercion or duress.

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Richard R. Meneghello is the Publications Partner for Fisher Phillips. He develops legal alerts, web articles, newsletter features, and blog posts for the Fisher Phillips website. Rich is also an accomplished litigator. He won a unanimous decision before the U.S. Supreme Court in the case of Albertsons v. Kirkingburg, an Americans with Disabilities Act case, as well as cases for clients at the Ninth Circuit Court of Appeals, the Oregon Supreme Court, and the Oregon Court of Appeals, along with trial victories in both state and federal courts. Sarah Moore is a partner at Fisher Phillips, in its Cleveland office. She enjoys a robust practice that crosses industries in the private and public sectors and routinely incorporates the insights and best practices from this diversity in experience into her work. Sarah thrives on handling highly sensitive and challenging issues and regularly works hand-in-hand with her clients addressing the full spectrum of labor and employment concerns. John T. Lai is an associate in the firm’s Irvine office. He practices in all areas of labor and employment law. John has experience in intellectual property matters, unfair competition, and complex litigation.

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1. See Nanette Byrnes, As Goldman Embraces Automation, Even the Masters of the Universe Are Threatened, MIT TECHNOLOGY REVIEW (Feb. 7, 2017).