With the development and increasing public accessibility of artificial intelligence (AI) tools, conducting employer investigations can become more complicated. Employers are faced with an emerging challenge due to the ability of employees to create sophisticated forged audio and video, such as ‘deepfakes’.
As explained by Jesse Dill of Ogletree Deakins, employees may use AI technology to mimic someone else’s voice, creating a scripted audio recording in which another employee allegedly uses discriminatory or harassing language. AI can also be used to forge images and even video of people in almost any scenario.
This becomes particularly problematic during workplace investigations, adding a layer of complexity when employees present digital evidence to support their claims or alibis, raising questions about the authenticity and genuineness of such proofs.
The concept of a ‘liar’s dividend’ refers to the growing suspicion towards all factual representations due to the fear that anything might be fabricated with modern AI tools. In this setting, employers might feel obligated to fortify and consolidate every piece of factual data until it becomes incontestable.
Several jurisdictions uphold that courts are not ‘super personnel’ committees and that they do not replace an employer’s investigative judgment. Despite this, the effectiveness of litigation defenses can dramatically increase through an exhaustive investigation, which possibly prevents potential fraudulent claims from plaintiffs.
Jesse Dill suggests several steps to bolster investigations where AI poses a potential factor.
- Opportunity to Respond: Accused parties should be given the chance to rebut accusations. Especially when electronic evidence generated outside of the company’s equipment is concerned, the accused may be able to provide data that undermines the legitimacy of the accuser’s support.
- Alternative Verification: Where AI-created evidence is involved, alternative verification sources can ensure its legitimacy. For instance, company security cameras and time clocks can be used to validate the presence of individuals captured in employees’ personal photos and videos.
- Native Materials: A forensic expert can verify electronic evidence, by confirming whether the creation date and time of an electronic file aligns with the date and time of an image or recording.
- Live Verification: Evidence that can be immediately confirmed on an electronic device, for example, a scrollable call history report, can validate an employee’s claims. However, any limitations regarding device searches should be verified before asking for such a review.
With careful consideration, AI can offer significant opportunities for both employers and employees, and including strategies to address these tools in workplace investigations can enhance results and minimize litigation risks.