News & Commentary

April 3, 2023

Chinmay G. Pandit

Chinmay G. Pandit is a student at Harvard Law School.

In today’s [email protected]: Courts continue to shape the contours of Illinois’s BIPA legislation. Meanwhile, Goldman Sachs estimates a substantial global productivity boost from workplace AI tools.

Courts Provide Two Key BIPA Rulings

Courts issued two major decisions in March pertaining to Illinois’s Biometric Information Privacy Act (BIPA).

First, after hearing oral arguments in January for Walton v. Roosevelt University, the Illinois Supreme Court held that federal collective bargaining law preempts unionized employees’ claims under the state’s Privacy Act. In the high-profile case, the justices ruled that management rights clauses within collective bargaining agreements are sufficiently expansive to include bargaining over privacy rights, thereby barring individual negotiating over at-work privacy matters. The union employee plaintiff filed a class-action complaint against his former employer, alleging that the workplace time-keeping mechanism collected biometric data in violation of BIPA. However, Illinois’s appellate court, affirmed by the state’s high court, held that timekeeping procedures are “a topic for negotiation that is clearly covered by the collective bargaining agreement” and therefore subject to federal collective bargaining law.

Second, the Northern District of Illinois denied Papa John’s motion to dismiss a proposed class action lawsuit alleging that the company impermissibly collected employee fingerprint data via its point-of-sale system, violating BIPA’s notice and consent provisions and its retention and storage provisions. In the case Kyles v. Hoosier Papa LLC, Papa John’s argued that the company itself neither possessed nor actively collected worker’s biometric data; and, according to the company, even though franchisees may have collected employee data, Papa John’s had only limited access to such information. But the court disagreed, finding that the Papa John’s had enough control over the point-of-sale systems used by franchisees and collected reports on those information systems. Additionally, the court held that an employer need not “actively collect” biometric data in order to violate BIPA. Rather, the defendant need only take an “active step” to collect or obtain the data beyond mere possession, a threshold the court found to be met in this case.

Goldman Sachs Estimates “Substantial” Productivity Gains from Workplace AI

In a recent publication, analysts at the large investment bank Goldman Sachs touted the potential productivity benefits of artificial intelligence (AI) tools such as GPT-4 — the recently released successor to the ChatGPT — in the workplace. The analyst team estimated that AI tools could boost US productivity by 1.5 percentage points per year over the next decade via reduced labor costs, increased worker efficiency, and new jobs. The team further estimated that adoption by half of global firms of AI technology could catalyze a 7% boost in global GDP, equating to roughly $7 trillion of new value.

The report took care to note that while the benefits of workplace AI are compelling, the transition will not benefit everyone in the short-term. In particular, office and administrative support roles could be the first to be fully replaced by technology. Seven out of 10 US workers, the Goldman analysts estimate, would be impacted by AI in their workplace; in a separate report, OpenAI predicted that 80% of US workforce could have at least 10% of their tasks affected by chatbots alone. However, the large majority of such workers would incorporate AI tools as a complementary element of their jobs rather than a substitute. The report specifically highlights computer, education, and community and social service industries as those where AI tools would support existing workforces without eliminating them.

Furthermore, recent findings indicate that companies and customers strongly prefer having human oversight over tasks, even if they may be easily replaced with technology. For example, human resources (HR) departments across the US have begun widely incorporating AI tools to help draft job descriptions, performance reviews, and more. Yet, as the CEO of Confirm, an HR technology company, recently noted, customers consistently state that these AI-powered tools should remain “assistive, with humans still producing the end product,” such as managerial reviews.

Part of the concern stems from the potential for error or accidentally disclosing private data. Another consideration is human preference to interact with other humans rather than chatbots. Thus, as some consultants have suggested, employers should identify isolated, low stakes, but necessary “busy work” in the workplace that can be offloaded to technology tools, thereby freeing up employee time without compromising work product quality or human interaction.

Goldman’s report comes on the heels of large tech companies such as Google and Microsoft heavily investing in AI-powered workplace tools as a competitive advantage to fuel internal productivity.

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