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Illinois Regulates Employers' Use of AI During the Hiring Process

August 15, 2019

The Illinois Artificial Intelligence Video Interview Act (“AIVI Act”) was signed into law on August 9, 2019.  Effective on January 1, 2020, Illinois will be the first state to regulate the increasing use of algorithms, so-called “interview bots” and other forms of artificial intelligence (“AI”) to analyze applicants’ facial expressions, body language, word choices, and vocal tones during video interviews. In other words, this new Illinois law will regulate a quickly expanding aspect of the hiring process, the use of AI on video interviews to determine if the applicant exhibited the characteristics of “successful” candidates and may provide hiring recommendations. Further, multi-state employers should take note of the AIVI Act as it explicitly applies “when considering applicants for positions based in Illinois.”

Under the AIVI Act, before an employer can require applicants to provide video interviews, the employer will have to fulfill the following obligations: 

(1) Disclosure: The employer must provide advance disclosures to these applicants that their video interviews will be analyzed using AI.

(2) Explanation: The employer will have to explain to the applicants how the technology works and which of their characteristics/metrics will be evaluated electronically.

(3) Consent: Applicants must consent to the use of AI before it is used to analyze their video interviews.

(4) Confidentiality: Once a video is created, an employer may not share the video with anyone other than a person whose expertise is needed to evaluate the applicant’s fitness for the job.

(5) Destruction: Employers must also destroy all original and back-up copies within 30 days of receiving a request from an applicant, even though this destruction requirement may run afoul of state and federal hiring record retention requirements.

Open issues created by the AIVI Act include the following:

  • The AIVI Act does not define the term “artificial intelligence,” and there are a variety of accepted scientific definitions.  AI can refer to a number of different technologies of varying complexity and capability that may involve learning, reasoning, and self-correction.  Reduced to its essence, AI has been defined as “the capability of a machine to imitate human intelligent behavior.” (Merriam-Webster)
  • The AIVI Act does not define what information must be provided during the required disclosures.
  • The AIVI Act does not designate whether applicant consent requires “pen and ink” signatures, or whether electronic signatures or “click wrap agreements” (clicking on a button on a website) will be enough to establish consent. 

In addition, the use of AI during the hiring process already faces legal challenges.  If AI is being used on video interviews to screen candidates, the AI-based selection procedure may need to be validated in accordance with the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”) promulgated in order to address claims that the AI can cause an adverse impact on protected groups.  There are already underlying questions of whether AI can perpetuate biases and can lead to discriminatory hiring recommendations.  For example, Amazon recently abandoned its decades-long project to have AI assess its resumes because it could not teach the machine how not to discriminate.

Another potential concern for Illinois employers is whether the AIVI Act will cause the same legal issues created by the Illinois Biometric Information Privacy Act (BIPA).  BIPA requires disclosure and consent before businesses in Illinois can collect and use fingerprint scans, voice and facial recognition software, and other biometric information for identification and security purposes.  BIPA explicitly created a private cause of action that has led to a wave of class actions in Illinois, while the new AIVI Act says nothing about enforcement or penalties.  However, if the AI used to assess video interviews utilizes scans of face geometry, facial recognition technology, vocal biometric identifiers, or other biometric information covered under BIPA, a violation of the disclosure and consent requirements of the AIVI Act might also violate BIPA.

For Illinois employers who use AI to screen video interviews, the new AIVI Act requires immediate compliance actions, despite the AIVI Act’s open questions. One thing is clear, though, at a time when employers are increasingly embracing AI, the AIVI Act will make the use of such advanced technologies during the hiring process in Illinois more complicated.

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