Consider this: A robot that conducts job interviews and collects data on applicants based not just on the person’s answers but their physiological responses. It’s not science fiction — robots and artificial intelligence could be the next frontier in labour and employment law.
According to Garry Mathiason, chairman of labour and employment law firm Littler Mendelson PC, by 2025 half of the jobs currently performed in the United States will be performed by machines and software. This will introduce labour law issues such as workplace privacy, anti-discrimination protections, wage and hour requirements, human displacement, and collective bargaining requirements, among others.
He was speaking on a panel discussing the challenges facing in-house counsel as part of the Association of Corporate Counsel’s Emerging Global Trends for Corporate Counsel seminar last week.
Mathiason spoke of “Sophie,” a robot much cuter than Star Wars darling R2D2. Sophie is a product of NEC Corp. and La Trobe University Business School. It is designed to pre-screen job candidates and record the conversation while also noting the applicant’s cognitive verbal responses and monitoring changes in facial expression, blood pressure, heart rate, and more.
“You should be hearing a lot of landmines going off in the legal department over this,” said Mathiason, noting the plentiful privacy issues involved.
“We did a survey of corporate counsel on their knowledge of robotics and remarkably very few knew about them,” he said. “At FedEx [Corp.], with the robotics/ artificial intelligence project they have, they assign a lawyer from the beginning not to slow it down but speed it up to overcome the bumps along the way.”
In fact the American Bar Association has a committee dedicated to robotics and artificial intelligence.
And if it’s not robots, it’s troublesome bots of another kind on their way. Cyber security should also be a top concern for in-house counsel, according to fellow panelist Cornell Boggs, senior vice president, general counsel, and secretary with Dow Corning Corp. He says cyber threat challenges come with an “entirely new language” general counsel need to become familiar with.
“We are spending a lot more time in this space; more than we have. To me this issue is a corporate distraction,” said Boggs, who cited the massive data breach experienced by Target Corp. over last year’s holiday season.
“There have been issues in this area that have soaked up their mindshare far more than doing anything to execute their corporate strategy. We see data breaches growing 50 to 60 per cent in the past few years and we’re seeing these attacks occurring all over the world.”
Boggs highlighted malware, spear phishing, and e-mail as the top vehicles of attack.
Anti-virus provider Symantec Corp. noted a 91-per-cent increase in targeted attack campaigns in 2013, a 62-per-cent rise in the number of breaches, and 552 million identities exposed by breaches in 2013.
Although spam volume has dropped off through regulations and technology solutions, still one in 392 e-mails contains a phishing attack, with web-based attacks up 23 per cent and one in eight legitimate web sites having a critical vulnerability.
“We at Dow Corning lived through this last year. We had an attack on our company,” said Boggs, explaining someone sent an e-mail that appeared to come from the chief marketing officer’s Yahoo account which forwarded an e-mail thought to have been written by the company’s CEO. A number of employees clicked on the bogus message.
“It could be happening in your companies and you may have no clue it’s even happening,” said Boggs
To help combat all of this, general counsel need to step up and take the issues on without fear, said Av Maharaj, former vice president and chief counsel at Kellogg Canada Inc. and Kellogg International, now counsel with Fasken Martineau DuMoulin LLP.
“The days of the dispassionate adviser are over,” he said. “I’m looking for business-focused lawyers and if you think you can provide legal advice and then say, ‘OK, now it’s the business’ decision to make,’ you’re wrong. I think that’s absolutely critical. Blocking and tackling doesn’t work anymore — it is the low value add of the legal department.”
The low-level work once thought to be important is now considered just a cost of doing business.
“What you have to do is add value,” he said, citing the three concepts he says in-house need to embrace:
1. Be functionally brilliant in the areas that matter. Figure out what matters to your company and forget the rest — hire or rent it;
2. Be that key business adviser. If you don’t understand the profit and loss of your organization you will fail them. Speak to business people in a language they understand. They will trust you for doing it;
3. Be commercially focused in your legal advice.
“If you do those three things you will be very successful,” he said. “Other than HR, we are the only other group that touches every part of an organization.”
He cautioned that people in a company often come to the legal department for “absolution, not legal advice.”
“My view is take people out of their comfort zones so challenge them.”
It is important in-house departments evolve to meet all future challenges to stay relevant, said Daniel Desjardins, senior vice president and general counsel of Bombardier Inc.
“What we can provide is risk-based advice. We understand our businesses better than the law firms do. We have to be the best and so it’s about adapting to the changing needs of the business.”