HR executives could be personally sued for how their organization uses AI, but there are ways to protect themselves
When an employment decision made with the help of an AI tool goes wrong, the question of who's legally responsible isn't always obvious. David Miklas, a Florida-based employment attorney with 27 years of experience advising HR leaders, says the liability exposure is more personal than most HR professionals realize.
"The employer will almost always have liability," Miklas said. "And believe it or not, the HR professional may actually have liability personally."
It's a reality that's easy to overlook as AI becomes standard practice across HR functions, from resume screening and candidate ranking to performance management and termination decisions.
Miklas says the liability typically flows from three sources: failure to properly vet an AI vendor before deployment, failure to secure candidate consent where required, and failure to catch or address disparate impacts on protected groups. None of those failures require intent to trigger a claim. Negligence is enough to create exposure.
Miklas points to two federal statutes as particularly significant sources of risk. The Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) both define "employer" broadly enough that they can reach individual HR professionals who exercise operational control over employment decisions.
"Both of those statutes define employer very...
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