AI has changed virtually every aspect of modern business. Correspondence can be drafted in a fraction of the time it used to take, and other tasks that previously required hours (if not days) of effort, such as conducting market research, planning customer pitches, and constructing business plans, now take only minutes.
But be aware: The same employees who use AI to improve the efficiency of a company’s initiatives are also using AI to help them assert claims against their employers.
Deluge of AI-Generated Complaints
Over the last few years, the following familiar pattern has emerged: An employee, feeling something at work was unfair, selectively feeds information to ChatGPT, and then in a matter of moments, ChatGPT provides the employee with a road map on how to sue the employer. Whereas previously, the employee would consult with an attorney to learn (1) whether there’s a viable claim and (2) if so, how to effectively assert it, now, court dockets are filled with lengthy, convoluted, AI-generated lawsuits that cite hallucinated case law, assert nonexistent legal theories, and create ethical and practical concerns for courts, attorneys, and litigants alike.
Even before the dispute reaches the courts, employees are using this same method to inundate HR departments with internal complaints. Employees can enter a few sentences about a disagreement with a supervisor and quickly receive from ChatGPT what looks like a formal complaint alleging discrimination, retaliation, harassment, wage and hour violations, or similar allegations. Because employees can generate new allegations—and rebuttals to HR’s responses—faster than HR can process them, the result is a deluge of AI-generated complaints that prevent HR from being able to timely and effectively close out internal investigations.
What Should You Do About It?
While the imbalance is frustrating, businesses must still evaluate both internal and external complaints to determine whether any portion of an employee’s AI-generated complaint asserts a viable claim the business has a duty to investigate and address. Among other things, the following practical tips may be useful as you seek to separate actual complaints from the surrounding noise:
Review AI activity within lawful boundaries. Many employees use their work computers to access AI and generate the complaint they’ll later email to HR. Assuming the business maintains technology policies putting employees on notice that there’s no expectation of privacy in information entered into or transmitted through company computer systems, then it may be permissible, in certain circumstances, for HR to work with the company’s IT department to review an employee’s AI chat history.
Often, reviewing what the employee told ChatGPT (or other AI) can provide context for the complaint that AI ultimately generated on the employee’s behalf. Reviewing chat histories may also help you ensure the employee didn’t disclose the company’s confidential information and trade secrets to public-facing, open AI.
Meet with the employee in person. Understandably, HR often conducts investigatory interviews over videoconferencing technology, especially when HR and the employee don’t work in the same physical location. If the employee is permitted to meet with HR through a computer or smartphone, however, the employee may feed HR’s questions into ChatGPT during the interview so AI can advise on how best to respond. Conversely, if HR meets with the employee in person, HR may find it easier to learn from the employee, without an AI filter, what they’re claiming, what evidence supports their claim, and the identity of other employees who should be interviewed.
Consult with experienced employment counsel. The law concerning AI’s impact on internal and external employee complaints is quickly evolving. As courts continue to grapple with a flood of AI-fueled lawsuits, they’re in the early stages of determining whether rules should exist giving employees sufficient leeway while still protecting businesses from the added expense associated with AI-generated lawsuits.
When businesses consult with employment counsel during the internal investigation phase, counsel can assist them with questions like what privacy laws affect a company’s ability to search employee AI chat histories, what risks exist in disciplining employees who upload company trade secrets while seeking AI’s employment advice, whether an employee’s AI-generated complaint asserts a claim that could be legally viable, and how to most effectively build a clear record of the company’s compliance with employment laws.
Shannon S. Pierce is an attorney with Fennemore Law in Reno, Nevada, and can be reached at spierce@fennemorelaw.com.