The use of artificial intelligence (AI) technology has caused concern in numerous industries, raising concerns ranging from copyright protection to employment discrimination. State legislatures, state and federal regulatory agencies, and the White House have weighed in on the potential misuse, whether intentional or not, of AI in the workplace. New Jersey employment law does not address this issue directly, but several pending bills would take it on. The U.S. Senate also has a bill that deals with the use of AI in hiring decisions. The No Robot Bosses Act (NRBA) would limit the ways employers may use AI during the hiring process and give individuals the right to sue for damages. The bill is unlikely to pass during this session, but it will hopefully inspire future bills.
Several bills introduced in the 2024-25 session of the New Jersey Legislature address AI in employment decisions. One would regulate “automated employment decision tools,” systems that use machine learning or other types of AI to screen job applicants or identify preferred candidates for a position. These types of tools rely on human-supplied data to “learn,” so they are prone to making biased decisions if they receive biased data. This can occur with no conscious intent to be biased. The bill would require “bias audits” for all AI screening tools. The NRBA also addresses these concerns.
The NRBA would regulate “automated decision systems” (ADSs), which it defines as “a system, software, or process that uses computation” to make decisions or assist in decision-making. This includes systems that use “machine learning, statistics, or other data processing or artificial intelligence techniques.”
Under the NRBA, employers “may not rely exclusively on an [ADS] in making an employment-related decision,” such as whether to hire, fire, or promote someone. Any ADS that an employer intends to use to assist in employment decisions must have had “pre-deployment testing and validation” regarding its compliance with federal employment discrimination statutes like Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Equal Pay Act.
Employers would have to disclose the use of AI in employment decisions to any affected employee or job applicant. The disclosure would have to include:
– A description of the data collected by the system;
– The characteristics that the system measures, such as an individual’s “knowledge, skills, or abilities”;
– How the system measures each of these characteristics; and
– How each characteristic relates to the individual’s job or the job the individual is seeking.
The statute includes whistleblower protection provisions. Employers would be prohibited from retaliating against employees who report alleged violations, participate in investigations, or exercise any rights protected by the law.
The NRBA would establish a new division in the U.S. Department of Labor known as the Technology and Worker Protection Division (TWP). This division would have the authority to promulgate regulations implementing the statute and to investigate alleged violations.
One notable difference between the pending New Jersey bills and the NRBA involves private causes of action. The New Jersey bills would not allow employees or job applicants to sue for violations. The NRBA would allow individuals and labor unions to sue for up to treble damages.
If you believe your employer has engaged in unlawful workplace practices in New Jersey or New York, an experienced employment attorney can help you assert your rights and make a claim for damages. Schedule a confidential consultation with the Resnick Law Group today through our website or by calling 973-781-1204 or 646-867-7997.