In an era when digital deception can be almost indistinguishable from reality, the rise of deepfake technology presents a unique challenge to employers when conducting ethical and effective workplace investigations.

Deepfakes are false videos, images, or audio recordings created using artificial intelligence that appear strikingly close to the real things. They have the potential to undermine the foundational trust that’s crucial in any professional relationship. This article will explore the ins and outs of deepfake technology and how it impacts the delicate fabric of workplace investigations, providing essential guidance for employers facing the reality of digital deceit.

Understanding Deepfakes in the Workplace

The term “deepfake” itself may still be relatively new, but the potential for digital deception has long been a concern. With deepfakes, the issue is not just the fraudulent content itself but also the speed, accessibility, and level of sophistication that these manipulated materials encompass.

In the workplace, deepfake videos can be used for various deceptive tactics, such as creating footage of an employee or employer participating in inappropriate activities, faking job-related skills, or distorting actual events to create false narratives. For example, last year in Putnam County, New York, a group of students used AI to create a deepfake video of a local middle school principal going on what the Washington Post referred to as a “profanity-laced, racist rant.”

Additionally, in 2019, a UK CEO was defrauded by a voice fake in what Forbes reported as “the first noted instance of an artificial intelligence-generated voice deepfake used in a scam.” He believed the request came from his boss and did not grow suspicious until the third call.

The implications for employers and workplace investigations are profound. With the advent of deepfake technology, it is no longer enough to rely solely on one form of evidence. Employers must now be vigilant in pursuing the truth, seeking confirmation from multiple sources, and perhaps even investing in anti-deepfake technology as part of their investigative processes.

Deepfakes and Employment Law

The issue of deepfakes in the workplace is not just a matter of digital integrity; it has significant legal ramifications. In an employment law context, deepfakes can be used to fabricate evidence of job performance, attendance records, compliance with company policies, or even employee conduct. For example, a deepfake video could present an employee in a compromising or inappropriate situation, leading to disciplinary action or termination, all based on false pretenses.

Employers must be acutely aware of the potential for deepfakes to influence the outcomes of their investigations and any subsequent legal proceedings. The mere existence of a deepfake video or other manipulated content representing an employee can cast doubt on the credibility of all video or audio evidence, regardless of its authenticity.

If employers must question and verify every piece of evidence submitted during workplace investigations, the process can quickly become lengthy and expensive. This level of scrutiny requires additional resources, including time and the need to consult with external experts who specialize in workplace investigations. The requirement to authenticate all forms of evidence, particularly in complex cases where deepfakes are a concern, might lead to extended investigation periods, delaying resolutions and increasing the costs associated with these inquiries.

Solutions for Employers

Identifying and addressing deepfakes in workplace investigations is a multifaceted challenge. Employers and investigators must have the right tools and strategies to counter the threat. Here are some key steps that organizations can take to mitigate the risks associated with deepfake technology:

Employee Education and Awareness

The first line of defense against deepfakes is an educated workforce. Employers should invest in training programs that raise awareness about the existence of deepfake technology and its potential impacts. This awareness can empower employees to question digital content’s veracity and promptly report any suspicious materials. Updating the employee handbook and appropriate policies to explicitly list deepfakes as a prohibited form of harassment is also crucial. Similarly, employers should ensure that harassment training is current and includes information on deepfakes.

Investment in Anti-Deepfake Technology

Employers can consider employing AI-based detection tools to spot anomalies in video and audio content that may indicate manipulation. While this technology is still in its infancy, advancements are being made to create more sophisticated detecting systems capable of identifying even the most convincing deepfakes.

Rigorous Documentation and Verification

Workplace investigators should adopt a policy of rigorous evidence documentation while conducting investigations. This includes verifying the source and authenticity of all evidence collected, maintaining a clear chain of custody, and employing unbiased third-party experts when necessary to verify legitimacy.

Respondents’ Rights in the Digital Age

The complex nature of deepfakes in workplace investigations underscores the importance of ensuring respondents receive a fair opportunity to respond to allegations. In cases where deepfake evidence might be involved, the respondent’s ability to contest the validity of such evidence and present their own documentation becomes particularly vital. This transparency not only aids in maintaining the investigation’s integrity but also helps safeguard against the wrongful implications of manipulated evidence.

Employers and investigators should establish clear protocols that allow for the submission of counter-evidence by respondents. This includes creating an open line of communication where respondents are promptly informed of the evidence against them and are provided with adequate time and resources to respond. By fostering an environment that encourages the presentation of all relevant evidence—both for and against the allegations—organizations can better ensure the fairness and accuracy of their investigative outcomes.

Legal Framework and Policy Creation

Organizations should work with legal professionals to establish policies that specifically address the use of deepfake content in the workplace. These policies should outline the consequences of creating or using deepfakes and provide guidance on how to handle investigations involving potentially manipulated materials.

Moving Forward with Caution and Confidence

Deepfakes are a disruptive force, challenging traditional notions of evidence and trust in the workplace. However, with proactive measures and a commitment to upholding the highest ethical standards, employers can carefully navigate the increasing means of digital deception.

Organizations must stay informed about the evolving landscape of deepfake technology and adapt their investigative practices accordingly.

We will continue to monitor news, legislation, and litigation related to AI in the workplace. For assistance with a workplace investigation, reach out to us! We are here to help and are happy to discuss your particular situation.