Effective January 1, 2020, Illinois enacted a new statute in response to the increasingly pervasive use of artificial intelligence, also known as AI, software by prospective employers. Proponents assert such software allows employers to zero in on and hire the best candidates more quickly and efficiently. Typically, these AI products use mobile video interviews with algorithms analyzing the prospective employee’s facial expressions, word choice, tone, body language and gestures to determine a candidate’s work style, ethic, cognitive ability, and interpersonal skills. Other AI tools might include AI review of resumes and algorithms to analyze an applicant’s response to interview or test questions or an applicant’s social media content. This is all done with the stated aim of finding the best candidate for the specific open position.
Illinois’ new statute, 820 ILCS 42/1, et seq., is among the first of its kind in the country. It addresses the use and disclosure of artificial intelligence video interviews, should an employee choose to utilize this still-emerging technology. The act, known as the Artificial Intelligence Video Interview Act, provides that an employer who asks applicants to record video interviews and uses AI analysis of the applicant-submitted videos must take certain steps. This includes (1) notifying each applicant before the interview that AI may be used to analyze the video and to evaluate and consider the applicant’s fitness for the position; (2) providing each applicant with information before the interview explaining how AI works and what general characteristics it uses to evaluate applicants; and (3) obtaining consent from the applicant. The Act also prohibits the sharing of applicant videos except with those whose expertise is necessary to evaluate the applicant. Applicants may request the destruction of the video interviews, and upon such a request, employers have 30 days within which to delete all copies of the videos, including those which might be in the possession of third-parties retained to evaluate them.
Interestingly, the statute does not define “artificial intelligence” or provide insight into what level of information is sufficient to meet the act’s explanation requirement. Also, by its terms, the act protects applicants based in Illinois, but does not indicate whether it is intended to apply to out-of-state employers hiring for a position located outside of Illinois. Finally, the act says nothing about enforcement, whether through a private cause of action for statutory damages or otherwise.
This new AI act is just one piece of an ever-increasing legal puzzle of already-enacted laws and pending legislation, both nationally and worldwide, seeking to address the use of AI in the hiring process and the protection of such data. In Illinois, another puzzle piece is the Biometric Information Privacy Act, 740 ILCS 14/1, et seq., regulating the collection and storage of biometric identifiers and providing for a broad private right of action for violations. The challenge for employers will be managing all such laws, at both the state and federal levels, to ensure compliance and avoid any resulting liability from a failure to comply. At a bare minimum, the implementation of Illinois’ AI Video Interview Act should encourage employers to exercise caution when considering or implementing hiring practices involving AI.