Illinois continues to lead the way in privacy and security legislation. The Prairie State is home to the Biometric Information Privacy Act, first of its kind legislation regulating the collection and possession of biometric information, and also the Personal Information Protection Act, considered one of the more expansive data breach notification laws in the nation. And now, in what has been described as “the momentous legislative session in decades”, the Illinois state legislature unanimously passed the Artificial Intelligence Video Interview Act (“the AIVI Act”), HB2557, which imposes consent, transparency and data destruction requirements on employers that implement AI technology during the job interview process. The AIVI Act, the first state law to regulate AI use in video interviews, will take effect January 1, 2020.

Below are several key obligations the AIVI Act imposes on employers:

  • Notification – The employer must notify the job applicant that AI will be used during the video interview for the purpose of analyzing the applicant’s facial expressions and consider the applicant’s fitness for the position. An applicant must also be provided with an information sheet prior to interview detailing how AI works and the characteristics it uses to evaluate applicants.
  • ConsentEmployers must obtain written consent from any applicant that is evaluated by an AI program. It is worth noting that an employer is not required to consider an applicant that refuses to provide consent for the use of AI.
  • Limitations on AI Use – An employer may not use AI to evaluate applicants who have not consented to the use of AI analysis. In addition an employer may not share applicant videos, except with persons whose expertise is necessary in order to evaluate an applicant’s fitness for a position.
  • Data Destruction – If an applicant requests the destruction of a video interview, the employer must comply within 30 days upon receiving the request. Further, the employer must instruct all persons that have received a copy of the applicant’s video interview to destroy the footage.

The AIVI Act does not contain a “definitions” section, and is vague on several key matters. For example, the law is silent on penalties and enforcement, and there is no definition of AI or guidance on how notification should be provided. AI use in the hiring process is still in its early stages and the AIVI Act will likely be amended as necessary, particularly as the practice becomes more commonplace.

While there is no other state legislation to serve as a comparison, as early as 2014 the EEOC has been taking notice of “big data” technologies and the potential that the use of such technology may be in violation of existing employment laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the American with Disabilities Act and the Genetic Information Nondiscrimination Act. While the EEOC does not yet have an official policy on AI-based tools in the workplace, it has emphasized that the employer must assess the benefits of AI-based tools against increased exposure and risk of privacy and security issues. For more on the EEOC’s stance on AI, check out this interesting podcast episode with Dr. Romella El Kharzazi of the EEOC, “The EEOC and AI Based Assessments – the Inside Scoop” on the podcast Science 4-Hire.

Only time will tell the impact the AIVI Act will have on employment practices. But if the AIVI Act is treated in a similar manner to the BIPA, which the Illinois Supreme Court has held does not require a showing of actual injury to sue, employers should tread carefully with AI usage in the workplace. Moreover, it will likely not be long before other states enact similar legislation. Employers, regardless of jurisdiction, should be evaluating their hiring practices and procedures, particularly to ensure that written consent is obtained before the use of any technology that collects the sensitive information of a job applicant or employee.