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R2-D2, C-3PO and You: Robots Invade the Workplace

By Allen Smith  2/14/2014
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As robots become more ubiquitous, the application of employment laws to workers and customers interacting with robots is taking on a life of its own, and the very definition of work is changing, according to a Littler report released Feb. 12, 2014.

In some instances, robots assist employees. Workers with robotic exoskeletons, so-called wearable robots, may avoid common workplace afflictions, such as back injuries.

But there is uncertainty, as well. With robots increasingly common in the health care industry, their use raises questions about malpractice litigation and health privacy-related concerns.

Michael Lotito, an attorney in Littler’s San Francisco office, recalled that when he was diagnosed with prostate cancer, a few years ago, one option was to have a robot operate on him. That raised a lot of questions.

He asked if he could talk with the robot and if the hospital’s medical malpractice insurance would cover the costs of a claim if the procedure had poor results. Also on Lotito’s mind: Did the robot have separate malpractice insurance, or would the attorney have to sue the robot’s maker?

How do anesthesiologists and nurses communicate with the robot? Lotito wondered. And who fixes the thing if it has trouble?

Ultimately, the attorney decided to leave the operation (which was successful) in human hands. And from the experience he gained personal insight into the issue of robotics in health care.

Robotics Revolution

Robotic systems are rapidly replacing many other jobs, according to Garry Mathiason, an attorney at Littler in San Francisco, speaking with Lotito at a Littler conference for robotics-industry leaders in Washington, D.C., where the report was released. Mathiason cited one study that predicts that by 2025 half the jobs now performed by people will - be done by machines.

One conference attendee said he is affiliated with businesses in agriculture and mining that now use robots and have reduced staff significantly. Workers have struck back, sabotaging the machines, he added.

The robotics industry has had periodic downturns, noted Stu Shepard, CEO & area manager for the Americas at the KUKA Robot Group. This happened most recently during the Great Recession and in 2001—in other words, the industry isn’t impervious to economic downturns that have affected the economy more generally. Tort liability, too, could slow the adoption of robotics.

But Mathiason said several recent breakthroughs will advance robotics, including:

  • Sensor technology.
  • *Cloud computing.
  • *Boolean logic for computers (which assists them in pattern recognition).
  • *Open sourcing.

To become more common in workplaces, robots need better batteries that last longer, but that problem’s being worked on.

Even HR may be affected, Mathiason said, telling the audience that a computer has been developed that communicates well enough that it could conduct first interviews with applicants. Even so, he predicts that HR professionals and managers will still conduct subsequent interviews.

Robots might have to be tweaked to comply with employment laws. A robot could count eye movements and register the heart rate of applicants, which sounds like a prohibited medical examination under the Americans with Disabilities Act, or a lie detector test, as regulated by the Employee Polygraph Protection Act.

Planes can now take off and land on their own, which is due to robotics, according to Mathiason. And robotics are used throughout the automotive industry; in fact, cars themselves are on the verge of commonly being autonomous.

“As robots take over tasks that are dangerous, strenuous or repetitive in nature, workers will suffer fewer and less severe injuries,” the report noted. “Second, creative applications of robotic engineering that are designed to assist workers in performing the physical requirements of their jobs will greatly improve the ability of injured workers to return to work, shorten the ‘lost-time’ period and reduce the re-injury rate.”

Take Action Now

Employers should prepare for the coming robotics revolution in several other ways, the report suggests:

  • Develop narrowly tailored written policies and procedures for using robotic systems in the workplace.
  • Prescreen all questions a robot would ask in an interview to ensure they are job-related and consistent with business necessity.
  • If a robot learns whom it should recommend for second interviews by comparing applicant characteristics with those of the current workforce, test the robot so that protected categories such as race, color, sex, religion, national origin, age and disability are not inadvertently used as part of the screening criteria.
  • Conduct an adverse-impact analysis before screening out applicants based on data obtained from robotics.
  • Establish a business-necessity defense before making employment decisions based on robotics.
  • Train managers, hiring officials and decision-makers on how to implement the company’s robotics-in-the-workplace policies and procedures consistent with anti-discrimination laws.
  • Keep information obtained from advanced robotic systems confidential.
  • Designate an HR employee to become the organization’s expert on robotics in the workplace.

In addition, HR and legal need to work now on providing a “soft landing” for the introduction of robots in the workforce, Mathiason recommended.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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