Generative AI in Employment Law: A Defense Trial Lawyer's Perspective

Nov 30, 2023 11:16:25 AM / by Hamish Cohen

Generative AI is a rapidly evolving field with the potential to revolutionize many industries, including law. While the full impact of generative AI on employment law is still unknown, there are a number of potential implications for both employers and employees.


Applicant and Employee Privacy

One of the biggest concerns surrounding generative AI is its potential to impact applicant and employee privacy. Generative AI models are trained on massive datasets of text and code, which can include sensitive personal information. Employers may use generative AI to screen job applicants, create employee profiles, and even generate performance reviews. However, employers must be careful to ensure that their use of generative AI does not violate employee privacy laws.

For example, employers should not use generative AI to collect or process data about employees' protected characteristics, such as race, religion, sex, or age. Employers should also take steps to ensure that generative AI models are not trained on data that is biased or discriminatory.


Another concern is that generative AI models can be biased, reflecting the biases that exist in the data they are trained on. This could lead to unfair outcomes for applicants and employees. For example, a generative AI model that is trained on a dataset of job resumes may be biased against certain groups of people, such as women or minorities.

Employers should take steps to mitigate bias in generative AI models. This may include using a diverse set of training data and testing models for bias. Employers should also be transparent about their use of generative AI and provide employees with an opportunity to challenge any decisions that are made based on generative AI models.

Trade Secrets

Generative AI models can also be used to create new trade secrets, such as new product designs or marketing strategies. However, employers must be careful to protect their trade secrets from unauthorized disclosure. For example, employers should not allow employees to use generative AI to create trade secrets that could be used by a competitor.

Employers should also have policies in place that govern the use of generative AI and the protection of trade secrets. These policies should clearly state who owns any trade secrets created using generative AI and how employees must protect those trade secrets.

Practical Recommendations for Governing the Use of AI

Here are a few practical recommendations for governing the use of generative AI in employment law:
  • Develop and implement policies that govern the use of generative AI. These policies should clearly state how generative AI can and cannot be used, as well as who is responsible for overseeing its use.

  • Train employees on the responsible use of generative AI. Employees should be aware of the potential risks and benefits of generative AI, as well as their obligations under company policies.
  • Monitor the use of generative AI to identify and mitigate bias. Employers should regularly review the outputs of generative AI models to identify any potential biases.
  • Have a process for employees to challenge decisions made based on generative AI models. Employees should have a way to challenge any decision that they believe is unfair or discriminatory.


Generative AI is a powerful tool with the potential to revolutionize many aspects of employment law. However, it is important to use generative AI responsibly and ethically. Employers should take steps to mitigate the risks associated with generative AI, such as privacy violations, bias, and trade secret misappropriation.

On a Lighthearted Note

While generative AI is a serious topic, it can also be a bit of fun to think about the potential applications of this technology in the legal world. For example, imagine a future where generative AI is used to write briefs, draft contracts, and even argue cases in court. While this may seem far-fetched today, it is not inconceivable that generative AI will play a significant role in the legal profession in the years to come.

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Tags: eDiscovery, Litigation Support, generative ai, employment law

Hamish Cohen

Written by Hamish Cohen

Hamish acts as outside general counsel at MBCB to businesses in multiple industries. He also competes in Ironman triathlons.