Feeding your AI with employee data? Here’s food for thought

Published: March 12, 2024 | by Helena Oroz, Senior Legal Editor at Brightmine

There’s no such thing as a free lunch, right?

Organizations with the means to train their own artificial intelligence (AI) models with employee data might disagree. AI models are insatiable data consumers, and employee data is plentiful, renewable — and free.

Some employers have been quick to warn their employees against feeding publicly available generative AI applications with confidential company information. But employers using employee data to train AI models might be ignoring the privacy implications of their own activities.

Big appetites

In basic terms, an artificial intelligence (AI) model is a program, trained on a set of data, that can autonomously make decisions or predictions. Without getting technical, a quality data set is really important to AI training, and training an AI model requires a lot of data.

There are many takes, hot and otherwise, on whether data is “the new oil” (just do a quick Google search on that phrase). As the Federal Trade Commission’s Technology Blog recently put it, the comparison comes from looking at data as a raw material mined in massive quantities but useful only when refined; and “there is perhaps no data refinery as large-capacity and as data-hungry as AI.”

Few rules

Employee data privacy protection in the United States is limited. A national comprehensive data protection law does not exist, and most experts say such a law is not realistically on the horizon.

Some federal laws provide limited protection for certain employee information, including:

A web of protections has resulted from individual states trying to fill the federal privacy void in various ways, including but definitely not limited to:

Even the strongest state laws of any variety do not, at this time, outright prohibit an employer from training an AI model (its own or a “model-as-a-service”) with employee data – so long as it is otherwise operating within the bounds of applicable laws in its jurisdiction(s). But therein lies the rub: there are some rules. As just about every federal agency that has anything to do with workplace-related AI issues has stated quite plainly: there is no AI exemption from existing law.

And the laws and regs will keep coming. Many AI-related bills are currently under consideration in state legislatures across the country, several of which propose restrictions on employer collection and disclosure of employee personal information. Employers rushing to get in on the AI feeding frenzy before considering their current privacy obligations, and without keeping an eye on their potential future ones, are betting on unknown odds in an unfamiliar game.

Employee data, employee concerns

Many businesses, even those not known as behemoths, have tons of data at the ready. Employers with any sizable workforce have at least two buckets of information at their disposal: information that can be gleaned from the daily work that their employees perform, and personal data about those very same employees.

Why employee data? It’s plentiful, it’s free, and employers already own it. And considering the dearth of regulation in this particular area, it’s not surprising that employers like employee data as an AI training source.

But there are other reasons that employers are feeding AI with employee data:

• Employers want to reap the full benefits of employee work. But they may struggle to “maximize efficiencies” – i.e., create processes to avoid constant wheel reinvention. AI tools can help with these challenges, and in fact, much of the AI-in-the-workplace narrative has focused on such time and cost savings to employers.
• Employers want AI to act like a collective brain. Employees leave, projects end, communications are deleted or archived, and the human intelligence behind it all is lost or unusable to the organization. AI can theoretically solve that problem.
• Employers want tailored AI solutions. Publicly available AI models are trained in large part on publicly-available information, which can’t give employers what they want in terms of solutions based on internal, proprietary information.

The flip side of employer AI excitement is employee AI anxiety. Employees are already anxious about AI technology replacing them. But employees who feel like their employer is actively using their hard work to train the tech that will replace them is next level anxiety.

Employees are also concerned about their privacy, although most don’t understand existing rules (or the lack thereof). According to recent studies from the Pew Research Center:

• A majority of US adults oppose using AI to track workers’ movements on the job or record exactly what people are doing on their work computers, according to.
• Only twenty-three percent of US adults know that the US lacks a national privacy law that sets common standards for companies that collect data through their products and services according to research from the Pew Research Center.
• Seventy-two percent of US adults said they have little to no understanding about the laws and regulations that are currently in place to protect their data privacy.

Employers who do not want uninformed employees to create their own narratives should be up front about why and how they are using AI technology, what role employee data plays in that process, and how they are complying with applicable law. Employees may still have fears, but at least they will have the facts, too. Employers who do not embrace AI transparency may feel the familiar consequences of poor people decisions: decreased morale, low engagement, and ultimately turnover. If an employer can’t keep its employees around, it can’t keep training its AI either.

Real smarts about AI

Employers scraping employee data for AI training purposes should proceed in a thoughtful, measured, and most importantly, informed manner. So, before feeding your AI, consider the following as food for thought:

Conclusion

Employers currently have a tremendous amount of freedom in terms of how they can use most employee information. But smart employers understand that the law on AI in the workplace won’t always be outpaced by the technology – and they aren’t willing to pay the price for uninformed decisions that negatively impact their employees.