With the Artificial Intelligence Video Interview Act (effective January 1, 2020), or “AI Video Act,” Illinois has passed a groundbreaking new law regulating the use of artificial intelligence (“AI”) in video recruitment practices.
Employers increasingly seek tech-enabled tools to facilitate the hiring, evaluation, retention and development of their workforces. However, as the implementation of new technology grows, old problems, like bias and disparate impact, may surface in new ways. While the White House has encouraged a hands-off approach, the AI Video Act signals a trend towards state-level responses to this emerging technology and its risks.
Scope, application and requirements
The AI Video Act requires employers who ask applicants to record video interviews and analyze those videos using artificial intelligence for candidate fitness purposes to, before the interview:
1. provide notice that AI may be used to evaluate the video interview;
2. explain how the technology works and the characteristics it will use to evaluate the applicant; and
3. obtain consent from the applicant to be evaluated using AI (without consent, any usage of the described AI to determine suitability is prohibited).
The law also imposes distribution limitations and a destruction requirement mandating that all video copies (including backups) of an interview be destroyed within 30 days of the applicant’s request for destruction.
As with many emerging state laws governing technology, the AI Video Act’s current applicability and utility are unclear. For example, the Act does not define “artificial intelligence,” a term that is often misunderstood and misapplied even by experts. Such ambiguity could lead to unintended consequences or misinterpretation, and, at the very least, makes it more difficult for employers to comply. Moreover, without additional guidance, the required explanation of how AI works may be difficult for human resources personnel to explain or for an average job applicant to understand. Finally, the AI Video Act does not specify the consequences of violations or methods of enforcement; while it may be enforced by the Illinois attorney general, it is possible that a private right of action may be implied as well.
Although these ambiguities may frustrate employers seeking to comply, it should encourage businesses to continue their efforts to evaluate their use of technology-based recruiting and hiring before risks of stricter enforcement arise. As we have previously written, AI regulation is also being deliberated at the federal level. Understanding fully how AI is used and the data on which it relies will become increasingly important, especially as evidence increases that implicit bias may be present in the underlying data on which AI relies, which could result in disparate impact discrimination. Employers using technologies that may rely on machine learning, algorithms, or scoring for video or other purposes may also consider contacting external counsel to review the use of these technologies in light of changing legal requirements. Employers in Illinois (and nationwide, as the AI-regulation trend grows) may benefit from increasing use of privacy by design, internal policy development, training and data governance generally. We expect that the AI Video Act will be a harbinger of more laws regulating AI in the labor and employment context, and employers should be prepared for this changing legal environment.