Yesterday, I was on a flight for a business trip and was writing a post about a few Artificial Intelligence applications I’ve been playing around with.  But before I could publish my post, I was reminded that you have to get up pretty early in the morning to beat Daniel Schwartz on a blog topic (and I was on Mountain time, so Dan already had a two-hour head start).  Yesterday, Dan was also thinking about AI and employment law when he wrote about the development of artificial intelligence tools in the employment law context and asked ChatGPT to write an employment law poem.

I didn’t ask ChatGPT to write an employment law poem, but I did ask it to “Write an article that compares and contrasts employee versus independent contractor status using the economic realities test as applied by the Fifth Circuit Court of Appeals and lists the advantages and disadvantages to workers of the classification.”

Here is what the AI provided:

One common question that arises in the world of work is the difference between employee and independent contractor status. In the United States, the Fifth Circuit Court of Appeals uses the economic realities test to determine whether a worker should be classified as an employee or independent contractor.

The economic realities test considers several factors to determine a worker’s status, including the degree of control the employer has over the worker, the worker’s opportunity for profit or loss, the degree of skill required for the work, and the permanency of the working relationship. Based on these factors, a worker may be classified as an employee if they are subject to the control and direction of the employer, while an independent contractor is typically in business for themselves and has more control over how they perform their work.

There are advantages and disadvantages to both employee and independent contractor status. For employees, the main advantage is the protection provided by employment laws, such as minimum wage and overtime laws, as well as the ability to access employee benefits such as health insurance and retirement plans. Independent contractors, on the other hand, have more flexibility and control over their work, but may not have access to the same protections and benefits as employees.

In conclusion, the economic realities test, as applied by the Fifth Circuit Court of Appeals, is used to determine whether a worker should be classified as an employee or independent contractor. Both employee and independent contractor status have their own advantages and disadvantages, and the right choice for a worker will depend on their individual circumstances and goals.

If you know anything about employee/contractor misclassification, that’s not a bad, high-level overview albeit without any legal citations.  And I started to wonder, how is a teacher, a court or a client supposed to know whether the work product turned in was written by the student or attorney or was merely drafted using AI assistance?  And, who owns the work product of the AI generated material (although that is probably answered in the Terms of Service we all review so carefully).

Next, I asked a different AI application to draw me a picture of an owl dressed like a trial lawyer with a briefcase.  DALL-E, an app that uses artificial intelligence to render an image based only on a textual description, drew me several variations to choose from.  Here is one of those variations which were all very good.

It is amazing what humans have trained computers to do. And while I probably won’t see AI displacing all aspects of legal services, there will certainly be opportunities to make some parts of legal services more efficient.  I’ve long been suspicious of legal tools that use artificial learning to review large data sets for litigation document production despite their speed and economic advantages over traditional human document review.  However, experiments with these AI tools cause me to be more open-minded in the future.  Lawyers beware, the robots are coming.