Uncharted Territory

As artificial intelligence advances rapidly, its use by employers—in recruitment selection tools, chatbots, performance management and elsewhere—continues to grow. Adam S. Forman is among the navigators helping employers steer clear of trouble.

“My job is to help them achieve their goal in the most legally compliant way possible, while ensuring that they are comfortable with any risk—legal or reputational—that they cannot mitigate,” says Forman, a member at Epstein Becker & Green.

While he’s always been an early adopter when it comes to tech—for example, he had one of the first Sony Watchman TVs—that’s not where his career started. 

Forman decided to study law when he was a horticulture major at Michigan State. He discovered his passion for labor and employment law through a summer internship at the Detroit Newspaper Agency, which was created in 1987 as part of the joint operating agreement between Detroit Free Press and The Detroit News. It was summer 1994, just before the historic Detroit newspaper strike from 1995 to 1997.

“I found it fascinating,” Forman says. “Everything about that summer experience—from attending meetings between management and the unions, planning for an uncertain future and, most importantly, the passion and strongly held convictions exhibited by both sides—captivated me.”

He started his 2L at Syracuse University College of Law knowing labor and employment would be his focus. Paired with his interest in new tech, he soon found a niche “combining my avocation with my vocation,” he says.

“When I got into practice,” Forman continues, “it became very clear to me that employers were struggling with implementing technology.”

An early, quaint example was whether public and private sector employers could monitor and manage employees playing Solitaire on their computers. It’s gotten more complicated as new tech keeps entering workplaces: the internet, email, PalmPilots, social media, cellphones, camera phones and smartphones. He started writing for Lawnotes, reporting on the tech cropping up and the implications for labor and employment, such as potential for discrimination, obligation to negotiate with labor unions and privacy rights. 

“AI and GenAI are just the latest, and perhaps most significant and impactful, iteration of this evolution,” Forman says.

While the complications in compliance are not fundamentally different, it’s the rapid pace of the technology’s evolution and growth that have been challenging—not to mention the emerging regulations. In addition to working with employers, Forman and a team of EBG labor lawyers also work directly with AI vendors.

“There is a patchwork of federal, state and local laws that seek to regulate an employer’s use of tools that would have an impact on someone’s wages, hours or working conditions,” he says. “Some that we’ve seen over the last several years are expressly written to address AI tools that are used for workplace purposes.”

For example, some clients are using AI tools to listen to calls between customer service representatives and customers. AI companies claim the tools can monitor whether an employee is compliant in a heavily regulated industry or even rank the employee’s performance, Forman explains. 

“Now we’re getting into disciplining, discharging or promoting an employee based on AI,” Forman says. 

However, statutes are being enacted to guardrail the use of these types of automated employment tools in making hiring and promotion decisions. There are many other laws that, even without mentioning AI, apply to its use in workplaces, such as Title VII of the Civil Rights Act. 

“We work with several experts to perform adverse impact analysis and we help to ensure that the products our clients are using do not have unlawful disparate impact or disparate treatment,” Forman says, citing the use of AI for hiring and promotions. “If we view the technology as a complementary tool as opposed to a flat-out replacement for all human endeavors, I think it’s going to be a net positive. Or at least, that’s my optimistic hope.”

The economic and efficiency benefits are too enticing for his clients to ignore, Forman adds. So he has adjusted his approach when counseling clients from “no, but” to “yes, and.”

“My focus has evolved to ‘Yes, you can use the AI tool for the workplace use case you have identified,’” he answers. “‘Now let’s discuss the steps you need to take to minimize, if not eliminate, any legal risk.’”