Law/Legal
Here's a look at documents from law firms and legal groups
Featured Stories
Littler Issues Commentary: Employers in the Netherlands Cannot Assess Whether Employees Are Sick
SAN FRANCISCO, California, March 5 -- Littler, a law firm, issued the following commentary on March 4, 2026, by office managing shareholder Eric van Dam and intern Sander van Walstijn:
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Employers in the Netherlands Cannot Assess Whether Employees Are Sick
In the Netherlands, an employer cannot simply disregard an employee's sick report and instead must engage the occupational physician if there are doubts. Until the physician has expressed an opinion on the employee's capacity or incapacity for work, the employer must respect the sick report, and the employee retains their right to a salary
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SAN FRANCISCO, California, March 5 -- Littler, a law firm, issued the following commentary on March 4, 2026, by office managing shareholder Eric van Dam and intern Sander van Walstijn:
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Employers in the Netherlands Cannot Assess Whether Employees Are Sick
In the Netherlands, an employer cannot simply disregard an employee's sick report and instead must engage the occupational physician if there are doubts. Until the physician has expressed an opinion on the employee's capacity or incapacity for work, the employer must respect the sick report, and the employee retains their right to a salaryand protection from dismissal. The 's-Hertogenbosch Appellate Court recently confirmed that rejecting a sick report and/or stopping salary payments without prompt consultation of the occupational physician is permitted only in exceptional and compelling circumstances.
What was the situation here?
After the employee had reported sick to both her director and the occupational health and safety service, the director sent her an e-mail the next day informing her that he did not accept the sick report and ordered her to come to work the same day. When the employee did not show up, she was summarily dismissed for failing to come to work in violation of a specific work instruction.
Subdistrict Court: unlawful summary dismissal
The Subdistrict Court rejected the summary dismissal because the employer had not convincingly argued that the employee was not sick. That assessment is reserved for the occupational physician, according to the Subdistrict Court, and the employer failed to engage one.
Appellate Court
On appeal, the employer argued that the key issue was who bears the burden of proving sickness and capacity/incapacity for work in the event of summary dismissal for an unauthorized absence from work. According to the employer, the circumstances warranted a reversal of the burden of proof. In other words, it was up to the employee to prove that she was sick.
The Appellate Court did not concur. The issue did not involve the burden of proof but rather that the employer was of the opinion that it could make a judgment about incapacity for work on its own accord, without engaging the occupational physician. The employer had not taken any steps to have the sick report assessed and had not even called the employee in for an (emergency) examination by the occupational physician. The Appellate Court was of the opinion that, by acting in this way, the employer had violated the mandatory steps for non-acceptance of a sick report such that the summary dismissal was not legally valid.
Takeaways
Although, in practice, we see that employers regularly - rightly - question a sick report and are inclined not to accept such a report, they must be careful not to take the law into their own hands. Always seek the opinion of the occupational physician and use it to determine whether a failure to come to work warrants measures such as a suspension of salary payments or even dismissal.
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*/ Sander van Walstijn is an intern in Littler's Amsterdam office.
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Authors
Eric van Dam
Office Managing Shareholder
Amsterdam
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Original text here: https://www.littler.com/news-analysis/asap/employers-netherlands-cannot-assess-whether-employees-are-sick
[Category: BizLaw/Legal]
Littler Issues Commentary: Cutting-Edge Workplace and Occupational Safety Legal and Compliance Issues Highlighted at ABA Midwinter Meeting
SAN FRANCISCO, California, March 5 -- Littler, a law firm, issued the following commentary on March 4, 2026, by counsel David A. Dixon:
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Cutting-Edge Workplace and Occupational Safety Legal and Compliance Issues Highlighted at ABA Midwinter Meeting
For several decades, the American Bar Association has hosted an annual event focused on Workplace & Occupational Safety and Health (WOSH) issues, including both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). This event brings employer, employee, government, and union advocates together to share different
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SAN FRANCISCO, California, March 5 -- Littler, a law firm, issued the following commentary on March 4, 2026, by counsel David A. Dixon:
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Cutting-Edge Workplace and Occupational Safety Legal and Compliance Issues Highlighted at ABA Midwinter Meeting
For several decades, the American Bar Association has hosted an annual event focused on Workplace & Occupational Safety and Health (WOSH) issues, including both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). This event brings employer, employee, government, and union advocates together to share differentperspectives, while recognizing a shared goal to enhance worker safety in American workplaces. This tradition continued during the last week of February 2026, in San Juan, Puerto Rico.
Although representatives from MSHA and OSHA current agency leadership were not in attendance for the event, a large number of individuals who have previously served in such government roles were present, alongside a broad spectrum of representatives from the larger workplace safety community, including numerous union representatives and management-side attorneys.
Emerging Themes Reflect a Time of Dynamic Change for Workplace Safety Regulation and Compliance
Over the course of four days, 24 panel presentations occurred, covering a wide range of highly active current workplace safety developments and issues, in both the MSHA and OSHA contexts. High-level themes that developed throughout the course of the event and impact all employers included:
* A continuing observed increase in workplace violence and drug & alcohol situations prompting human resource challenges and related regulatory and compliance responses;
* A recognition of how major recent Supreme Court decisions in cases such as Loper Bright and Jarkesy have affected the predictability of statutory, regulatory, and administrative hearing processes involving both MSHA and OSHA, while at the same time numerous executive orders have created an unprecedented level of regulatory re-calibration;
* A recognition of the manner in which a number of states (especially those with OSHA-approved State Plans) continue to be increasingly active on fast-developing workplace safety issues including workplace violence prevention, heat illness prevention, and others;
* Discussion about the unprecedented challenges - and opportunities - presented for workplace safety arising from the continuing emergence of AI in virtually every aspect of both workplaces and society writ large; and
* Discussion about statistics suggesting a general decline in OSHA enforcement (including in some State Plan states such as California) in recent years that may be attributed at least in part to ongoing staffing issues - a priority that recently-installed federal OSHA Chief David Keeling has identified as a top priority.
A Shared Commitment to Workplace Safety in Changing Times
In times of fast-paced change and conflicting viewpoints on many issues, there is some mild reassurance that can be taken by the collective ability of a group of very diverse thinkers representing employees, employers, and unions to gather in person to share candid discussion in a respectful and collegial manner. Despite different perspectives, all shared a common goal - to work toward ensuring the safety of workers so that they can return safely home to their families each day.
Employers should remain attentive to the numerous highly active frontiers of workplace safety compliance and planning that were discussed by leading figures at the event. Littler will continue to monitor specific workplace safety legal developments and to inform employers and advise clients about them.
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Authors
David A. Dixon
Littler onDemand Counsel
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Original text here: https://www.littler.com/news-analysis/asap/cutting-edge-workplace-and-occupational-safety-legal-and-compliance-issues
[Category: BizLaw/Legal]
McDermott strengthens its European finance platform with new partner in Milan
CHICAGO, Illinois, March 4 [Category: BizLaw/Legal] -- McDermott Will and Emery, a law firm, issued the following news release:
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McDermott strengthens its European finance platform with new partner in Milan
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McDermott Will & Schulte have announced that Andrea Giaretta has joined the firm as partner in the Transactions Practice Group in Milan, contributing to the expansion of the firm's banking and corporate finance capabilities in Italy.
Andrea has developed strong experience advising sponsors, financial institutions and alternative lenders on a broad range of financing transactions,
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CHICAGO, Illinois, March 4 [Category: BizLaw/Legal] -- McDermott Will and Emery, a law firm, issued the following news release:
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McDermott strengthens its European finance platform with new partner in Milan
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McDermott Will & Schulte have announced that Andrea Giaretta has joined the firm as partner in the Transactions Practice Group in Milan, contributing to the expansion of the firm's banking and corporate finance capabilities in Italy.
Andrea has developed strong experience advising sponsors, financial institutions and alternative lenders on a broad range of financing transactions,including real estate finance, leveraged and acquisition finance, structured finance and distressed debt matters. His deep understanding of the Italian market, combined with substantial exposure to cross border transactions, aligns seamlessly with the Firm's ability to provide clients with integrated, full service support on financial matters connected to the Italian market.
"Andrea's arrival marks another step in the expansion of our finance practice in Milan, following the recent promotion of Nicolo Perricone to Income Partner. His profile complements the strengths already present within the team and enables us to further broaden the range of services we offer to clients operating in the Italian market," said Giancarlo Castorino, Milan office managing partner.
Andrea joins the firm with a strong pedigree gained at leading international law firms. His experience advising major financial institutions on both domestic and multi jurisdictional financings positions him to contribute immediately to McDermott's expanding finance platform in Italy and across Europe.
"Andrea's knowledge of the Italian market, combined with his hands on financing experience, makes him a highly strategic addition to our team," said Harris Siskind, global head of McDermott's Transactions Practice Group. "His arrival enhances our offering in Italy and further reinforces the firm's positioning as a go to partner for finance transactions at both the national and European level."
Andrea's addition to the Italian team reflects McDermott's continued investment in strengthening its banking and finance capabilities in Italy. His arrival further enhances the role of the Milan office within the firm's European platform, which is also expanding in France with the recent addition of a new team in Paris.
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Original text here: https://www.mcdermottlaw.com/media/mcdermott-strengthens-its-european-finance-platform-with-new-partner-in-milan/
Littler Issues Commentary: Denmark's Bill to Implement the EU Pay Transparency Directive Sent for Public Consultation
SAN FRANCISCO, California, March 4 -- Littler, a law firm, issued the following commentary on March 3, 2026, by partner Christian Bonne Rasmussen and associate Nanna Heisel:
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Denmark's Bill to Implement the EU Pay Transparency Directive Sent for Public Consultation
At a Glance
* Denmark has released a bill to transpose the EU Pay Transparency Directive into Danish law.
* Of note, the proposal includes a delay in the effective date and employers' reporting obligations, adjusting the employee threshold for certain employers with 50-99 employees, and a preemption through collective agreements.
... Show Full Article
SAN FRANCISCO, California, March 4 -- Littler, a law firm, issued the following commentary on March 3, 2026, by partner Christian Bonne Rasmussen and associate Nanna Heisel:
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Denmark's Bill to Implement the EU Pay Transparency Directive Sent for Public Consultation
At a Glance
* Denmark has released a bill to transpose the EU Pay Transparency Directive into Danish law.
* Of note, the proposal includes a delay in the effective date and employers' reporting obligations, adjusting the employee threshold for certain employers with 50-99 employees, and a preemption through collective agreements.
*
After a long wait, Denmark's Ministry of Employment has released a bill for consultation on the implementation of the EU Pay Transparency Directive ("Directive"). The deadline for submitting consultation responses is March 27, 2026.
The consultation coincides with a parliamentary election, which was called on the same day. However, current reports suggest that the process will continue as planned.
The draft bill mimics the Directive in many aspects (e.g., pay transparency requirements, individual rights, and joint pay assessments). However, the draft bill contains several Danish-specific nuances:
Delay of entry into force and reporting deadlines
According to the draft bill, the law shall enter into force on January 1, 2027, which is after the Directive's June 2026 implementation deadline. Employers that fall under any reporting obligations will enjoy a year's reprieve. Employers with 150 or more employees will be required to report salary information for the first time on September 1, 2028, based on pay data for the 2027 calendar year. This is a year delay compared to the timeline set out in the Directive.
Parameters for assessing equal work and work of equal value
Under existing law, employers with more than 35 employees must report pay data to Danmarks Statistik, a government statistics authority. Employers are required to analyze and report on positions where more than 10 employees of each gender perform the same job, meaning they have the same DISCO codes.1
The legislative notes of the draft bill indicate that it is ultimately up to employers themselves to determine which employees perform the same work or work of equal value, taking into account the obligations regarding gender-neutral criteria set out in the law and the Directive. Although DISCO codes still have their place in the regulation, it has been established in the preparatory work that categorization based on DISCO codes will often not be sufficient.
The draft bill indicates that criteria used to evaluate comparative employees must include skills, effort, responsibility, and working conditions and, where relevant, any other factors relevant to the specific job or position. In addition, the draft bill explicitly states that relevant soft skills must not be underestimated, including collaboration skills, communication, social and emotional competencies, informal responsibilities, and knowledge sharing.
Per the draft bill, employers should evaluate the criteria with an employee representative, who is defined as an elected shop steward. However, there is no requirement for a company to elect an employee representative if the employer is not under any other legal obligation to have one.
Defining the role of Danmarks Statistik and extending Directive reporting thresholds
The current rules on gender-segregated wage statistics will be replaced by rules on wage reports to align with the Directive's reporting obligations. The draft bill introduces thresholds that will be new to small-to-medium sized Danish employers. As noted above, current law requires Danish employers with more than 35 employees and at least 10 employees of each gender performing the same work to report pay data to Danmarks Statistik.
The new rules require companies with at least 100 employees report on the wage gap between men and women who perform the same work or work of the same value. Employers will be able to report wage information to either Danmarks Statistik or existing employer organizations, which will then prepare a wage report for the company at no charge. In certain circumstances, the employer may be required to prepare the wage report themselves. In all cases, it will be the employer's responsibility to ensure that the wage report is accurate.
The draft bill proposes to extend the Directive's reporting obligation to companies with 50-99 employees if the company has employed eight of each gender in the same employee group calculated according to the 6-digit DISCO code or an equivalent classification system. This part of the implementation goes beyond the minimum requirements of the Directive, which only requires companies with 100 or more employees to report salary information. The thresholds in the draft bill are a compromise between unions and employer organizations in light of the existing 35-employee threshold under current law.
The proposed reporting schedule is:
* Companies with more than 250 employees must report salary information for the first time on September 1, 2028, and every year thereafter.
* Companies with 150-249 employees must report salary information for the first time on September 1, 2028, and every three years thereafter.
* Companies with 100-149 employees must report salary information for the first time on September 1, 2031, and every three years thereafter.
* Companies with 50-99 employees that have employed 8 of each gender in the same employee group calculated according to the 6-digit DISCO code or an equivalent classification system must report salary information for the first time on September 1, 2031, and every three years thereafter.
Clarification of burden of proof and suspension of limitation period
The Ministry of Employment is using the draft bill as an opportunity to clarify the burden of proof for equal pay claims. If an employee brings a claim for equal pay before the courts, and there is evidence that the employer did not fulfill its obligations under what is now the draft bill, the burden of proof shifts to the employer to prove that the employer has paid equal pay to men and women in accordance with the law. However, this shift will not apply if the employer can show that the failure to fulfill its obligations was clearly unintentional and of minor importance.
Claims for equal pay expire five years after the employee is or should have been aware of the claim. To align with Article 21 of the Directive, the draft bill proposes adjusted statute of limitations timeframes:
* the statute of limitations period will be temporarily suspended for six months from the date on which the employee informs the employer of the claim.
* regardless of the five-year limitation period, the limitation period will not expire until one year after the date the temporary suspension begins.
Preemption through collective agreements
Similar to previous laws implementing EU directives, the draft bill proposes that the law will not apply if there are corresponding rights and obligations laid down in a collective agreement. However, it is difficult to predict how the rights and obligations will be integrated into collective agreements. Employers may face challenges related to mixed workforces where some employee could be covered by the rules of the collective agreement and others by the implementing law.
Employer takeaways
The draft bill for the transposition of the Directive into Danish law provides for minimum implementation, which, among other things, gives individual companies a certain degree of discretion. However, this also leaves employers without a clear set of guidelines to determine equal pay principles.
Fortunately for Danish employers, the anticipated effective date is later than the Directive's specified implementation deadline. This seems appropriate in view of the need for preparation on the part of companies that are only now receiving insight into how the government intends to implement the Directive.
As the draft bill generally follows the baseline obligations set by the Directive, employers are advised to start now to draft or adjust their pay policies in accordance with the Directive. In addition, companies with more than 149 employees would be well advised to use the extra time provided by the delayed effective date to identify and resolve any unjustifiable pay gaps before those differences appear in the 2027 pay data.
We are closely following the consultation and legislative process.
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1/ DISCO codes are the Danish version of the international classification of job titles. It is a method to classify job functioning regardless of job title.
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Authors
Christian Bonne Rasmussen
Partner
Copenhagen
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Nanna Heisel
Associate
Copenhagen
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Original text here: https://www.littler.com/news-analysis/asap/denmarks-bill-implement-eu-pay-transparency-directive-sent-public-consultation
[Category: BizLaw/Legal]
In IP Litigator, David McIntosh and Sam Ross Examine a Potential Cautionary Tale in Patent Assignments
BOSTON, Massachusetts, March 4 [Category: BizLaw/Legal] -- Ropes and Gray, a law firm, issued the following news:
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In IP Litigator, David McIntosh and Sam Ross Examine a Potential Cautionary Tale in Patent Assignments
In an IP Litigator article, IP transactions partner David McIntosh and IP transactions associate Sam Ross examined a potential cautionary tale in patent assignments.
In the case Causam Enterprises, Inc. v. International Trade Commission, the United States Court of Appeals for the Federal Circuit (CAFC) found that an invention assignment agreement that broadly assigned the
... Show Full Article
BOSTON, Massachusetts, March 4 [Category: BizLaw/Legal] -- Ropes and Gray, a law firm, issued the following news:
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In IP Litigator, David McIntosh and Sam Ross Examine a Potential Cautionary Tale in Patent Assignments
In an IP Litigator article, IP transactions partner David McIntosh and IP transactions associate Sam Ross examined a potential cautionary tale in patent assignments.
In the case Causam Enterprises, Inc. v. International Trade Commission, the United States Court of Appeals for the Federal Circuit (CAFC) found that an invention assignment agreement that broadly assigned the"invention" of a patent application nonetheless did not transfer rights in a "continuation-in-part" of that patent application. This decision counsels companies active in the patent space to review their form employment or invention assignment agreements to ensure that they include a specific assignment of "continuations-in-part," and to review existing patent assignment agreements to ensure appropriate language has been included.
The authors note the CAFC's holding in this case has implications for both existing and future patent assignments and provide considerations for companies and individuals.
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Original text here: https://www.ropesgray.com/en/news-and-events/news/2026/03/in-ip-litigator-david-mcintosh-sam-ross-examine-potential-cautionary-tale-patent-assignments
Greenberg Traurig Presents BBA Webinar, 'eDiscovery and Artificial Intelligence: 2025 Year in Review and 2026 Trends'
MIAMI, Florida, March 4 [Category: BizLaw/Legal] -- Greenberg Traurig, a law firm, issued the following news release:
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Greenberg Traurig Presents BBA Webinar, 'eDiscovery and Artificial Intelligence: 2025 Year in Review and 2026 Trends'
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BOSTON - March 4, 2026 - Jacqueline Tambone deGrandpre and Elizabeth E. Georgiopoulos, shareholders in global law firm Greenberg Traurig, LLP 's Boston office, will present the Boston Bar Association webinar "eDiscovery and Artificial Intelligence: 2025 Year in Review and 2026 Trends" April 14.
The panel will be moderated by deGrandpre, with Georgiopoulos
... Show Full Article
MIAMI, Florida, March 4 [Category: BizLaw/Legal] -- Greenberg Traurig, a law firm, issued the following news release:
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Greenberg Traurig Presents BBA Webinar, 'eDiscovery and Artificial Intelligence: 2025 Year in Review and 2026 Trends'
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BOSTON - March 4, 2026 - Jacqueline Tambone deGrandpre and Elizabeth E. Georgiopoulos, shareholders in global law firm Greenberg Traurig, LLP 's Boston office, will present the Boston Bar Association webinar "eDiscovery and Artificial Intelligence: 2025 Year in Review and 2026 Trends" April 14.
The panel will be moderated by deGrandpre, with Georgiopoulosserving as a panelist. They will be joined by Luis Carlos Balaguer Escobar, a law clerk/JD at Greenberg Traurig, and Wayland Rabin, vice president of analytics at Innovative Driven. Panelists will discuss recent developments in eDiscovery and artificial intelligence, including the top trends in eDiscovery and AI, along with the case law, software, and related tools that shaped these developments. The webinar also will cover the top eDiscovery and AI trends to watch in 2026. For more information and to register, visit http:// here.
deGrandpre focuses her practice on products liability litigation with an emphasis on pharmaceutical, medical devices, and other consumer products. She also focuses on general litigation matters, including commercial litigation, complex business disputes, eminent domain, and white collar criminal matters. deGrandpre has experience representing clients responding to civil investigative demands and enforcement actions brought by both federal and state regulatory agencies. Among other things, she has experience defending companies against unfair or deceptive business practices claims, like Massachusetts General Laws Chapter 93A - Massachusetts Consumer Protection Act. In addition, she regularly advises and trains clients on information governance, eDiscovery, data privacy issues, cybersecurity, and litigation preparedness.
Georgiopoulos has a broad range of experience litigating high-stakes matters across state and federal courts as well as in domestic and international arbitration forums. In addition, she regularly serves as outside eDiscovery counsel for clients in cases involving intricate data issues, ensuring clients remain compliant while maintaining a strong litigation posture. Beyond her litigation practice, Georgiopoulos advises clients across industries on cutting-edge information governance issues, including record retention policies, data privacy and cybersecurity compliance, and the ethical deployment of AI in the workplace. She has drafted information governance frameworks for organizations ranging from startups to Fortune 500 companies. Georgiopoulos also has focused experience in HIPAA compliance and has a strong understanding in electronic medical records systems and related data analytics.
Balaguer counsels clients on developing and implementing AI governance policies, focusing on responsible use, intellectual property protection, data privacy, and ethical considerations. He drafts and maintains employee guidebooks for responsible AI deployment. He also represents corporate clients in complex commercial litigation, including Massachusetts Chapter 93A class action disputes. In addition, he assists with election law integrity matters. Balaguer is admitted to the Massachusetts bar.
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Original text here: https://www.gtlaw.com/en/news/2026/03/press-releases/greenberg-traurig-presents-bba-webinarediscovery-and-artificial-intelligence-2025-year-in-review-and-2026-trends
Fisher Phillips Issues Commentary: How Employers Can Manage Risk When Using AI for Employee Performance Management
ATLANTA, Georgia, March 4 -- Fisher Phillips, a law firm, issued the following commentary on March 3, 2025, by associate Jasmine Kiaei and partner David J. Walton:
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How Employers Can Manage Risk When Using AI for Employee Performance Management
Artificial intelligence is increasingly being used by employers to support employee performance management. While AI has the potential to improve talent matching and expand opportunities for growth, it raises significant legal and compliance considerations that employers must take into account before deploying. This Insight will provide an overview
... Show Full Article
ATLANTA, Georgia, March 4 -- Fisher Phillips, a law firm, issued the following commentary on March 3, 2025, by associate Jasmine Kiaei and partner David J. Walton:
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How Employers Can Manage Risk When Using AI for Employee Performance Management
Artificial intelligence is increasingly being used by employers to support employee performance management. While AI has the potential to improve talent matching and expand opportunities for growth, it raises significant legal and compliance considerations that employers must take into account before deploying. This Insight will provide an overviewof the ways in which you can use AI for performance management, summarize the inherent risks, and provide a list of steps you can take to address that risk.
How AI Performance Management Can Boost Your Workplace
Qualified employees frequently self-select out of roles they could succeed in because they are scared away by the overly long and all-encompassing job descriptions listing excessive qualifications they don't believe they can meet. Still others pursue positions misaligned with their actual capabilities, creating frustration for employer and employee alike.
AI-driven skills analysis offers a different approach. Instead of focusing on job titles or formal credentials, predictive analytics can identify employees in the workforce with transferable skills and knowledge for job openings.
These AI-driven systems are often powered by large datasets based on employee career histories. By analyzing how employees progressed over time, what skills they developed, and what training preceded advancement, AI can generate data-informed roadmaps for internal mobility, employee upskilling, and long-term career planning.
Promotion models can also increase efforts to diversify the workforce surfacing talent from non-traditional career paths that may otherwise have been overlooked if focus was only on titles and credentials.
For example:
* Customer service representatives may be identified for HR roles based on conflict-resolution skills.
* Retail supervisors may be tapped for project management based on scheduling and coordination experience.
* Flight attendants may be flagged for compliance roles due to their regulatory training.
Where Risk Emerges
Despite their promise, AI tools used for performance management, promotion recommendations, and skill inference present risk under employment and anti-discrimination laws. Many of these risks stem from how models are trained, what data they rely on, and how outputs are used in practice. While AI tools can improve predictive accuracy, the value of these tools, like all data-driven models, depends heavily on the quality, representativeness, and explainability of the underlying data.
What Data is Used to Define Success?
A common issue is the use of historical data to define "successful" employees or ideal career paths. These datasets may reflect past inequities, including biased performance evaluations, unequal access to development opportunities, and historic underrepresentation of certain groups in senior roles. Without careful safeguards, AI systems may learn and replicate these patterns rather than correct them.
What Inferences is AI Making?
Risk can also arise when AI-driven tools infer skills based on generic inputs. For example, job titles, career gaps, performance reviews, and project assignments may unintentionally encode information correlated with sex, race, age, disability, or socioeconomic background. Even when protected characteristics are not explicitly used, these proxies can influence outcomes in ways that disadvantage certain groups.
Is AI Making Key Determinations?
Even when framed as "recommendations," AI-driven systems can shape access to opportunities by determining which employees are presented with advancement paths, which are steered toward certain roles, and which receive high-visibility training. Employers who are self-regulating should increasingly view promotion access and development opportunities as areas of heightened scrutiny because of their direct impact on pay progression and career trajectory.
Are Opportunity Gaps Emerging?
Bias can also emerge in training and upskilling recommendations. AI systems may unevenly distribute high-value development opportunities, favor employees with greater schedule flexibility or financial resources, or nudge certain groups toward slower-advancing tracks. Over time, this can widen skill and opportunity gaps across the workforce.
Are Biases Being Amplified?
Performance review data poses its own challenges. Reviews are often influenced by rater bias, inconsistent managerial standards, halo and horn effects, and cultural communication differences. When these subjective inputs are heavily weighted, AI tools may amplify existing bias rather than mitigate it.
Are AI Decisions Explained?
Transparency is another recurring issue. Many performance and talent platforms rely on proprietary models, embeddings, or opaque skills ontologies that make it difficult to explain why certain employees are surfaced or excluded from opportunities. Lack of explainability itself increases regulatory and litigation exposure.
Are You Regularly Checking In?
Finally, some risks emerge only over time. Differences in employee engagement with AI tools, limited digital footprints for lower-visibility roles, and accessibility barriers for employees with disabilities can all lead to unequal outcomes if systems are not continuously monitored.
Managing Risk While Capturing Value: Practical Steps to Consider
Using AI for improving employee performance management requires deliberate governance. You should validate models before deploying them through bias and subgroup testing, using carefully curated and de-biased data, and not treating historical promotion patterns as ground truth. You should standardize inputs and workflows so employees are evaluated consistently, with accommodations built in where needed.
Equally important is maintaining human oversight. HR and leadership teams should review AI-generated recommendations, retain authority to override outputs, and document decision-making. Ongoing monitoring after deployment is essential to detect disparate impact, data imbalances, and drift as the workforce and inputs evolve.
Conclusion
We will continue to monitor developments related to AI performance management tools. Make sure you are subscribed to Fisher Phillips' Insight System to get the most up-to-date information. If you have questions about your organization's use of AI in the workplace, contact your Fisher Phillips attorney, the authors of this Insight, or any attorney in our AI, Data, and Analytics Practice Group.
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Original text here: https://www.fisherphillips.com/en/insights/insights/how-employers-can-manage-risk-when-using-ai-for-employee-performance-management
[Category: BizLaw/Legal]
