Bloomberg Law interviewed Shook Attorney Erin Bolan Hines about the Artificial Intelligence Video Interview Act (AIVIA) in "Law on Hiring Robots Could Trigger Litigation for Employers," October 11, 2019. AIVIA is a first-in-the-nation statute that requires employers to take additional transparency steps involving use and destruction of videos when using "hiring robots" as a screening tool for applicants in Illinois. Enforcement of AIVIA is not clear and defense attorneys who advocate for employers are monitoring to see if it will lead to class actions alleging abuses of employees' biometric information. Hines told the publication she predicts plaintiffs will develop theories under the Biometric Information Privacy Act (BIPA) to "test the waters." "There is a hurdle because there is no private right of action in the artificial intelligence statute, but there are some creative plaintiff's lawyers out there," stated Hines.
With so many questions surrounding artificial intelligence's effect on the workplace and workforce, one wonders whether future Labor Day celebrations will take on new meaning. Employers in Illinois may face these questions sooner than others following passage of a new Illinois law that regulates the use of artificial intelligence ("AI") to analyze and evaluate job applicants' video interviews. The Artificial Intelligence Video Interview Act imposes duties of transparency, consent and data destruction on organizations using AI to evaluate interviewees for jobs that are "based in" Illinois. The measure, passed unanimously in the Illinois legislature and approved by the Governor in early August, becomes effective January 1, 2020. Applying AI-based analytics to job interviews is an increasingly common practice.
Illinois is attempting to stay at the forefront of legislating the interaction between employment and technology with the Artificial Intelligence Video Interview Act (Act), which the state legislature passed on May 29, 2019. The Act, which is effective Jan. 1, 2020, impacts an employer's ability to use artificial intelligence (AI) when hiring workers in Illinois. Under the Act, an employer using videotaped interviews when filling a position in Illinois may use AI to analyze the interview footage only if 1) the employer notifies the applicant that the videotaped interview may be analyzed using AI for purposes of evaluating the applicant's fitness for the position, 2) the employer provides the applicant with information about how the AI works and what characteristics it uses to evaluate applicants, and 3) the employer obtains consent from the applicant to use AI for an analysis of the video interview. Further, because audio will be recorded, the employer must obtain the consent of the applicant to videotape the interview with or without the use of AI. An employer is not required to consider an applicant who refuses to provide consent for the employer's use of AI to evaluate the candidate.
It's time for employers to start preparing for legislation recently signed into law in Illinois, the Artificial Intelligence Video Interview Act. The new law, which takes effect on January 1, 2020, regulates Illinois employers' use of artificial intelligence (AI) in the interview and hiring process. Under the AI Video Interview Act, employers that record video interviews and use AI technology to analyze applicants' suitability for employment must: Employers that conduct such interviews may not distribute videos to other parties, except as necessary to obtain expert assistance in evaluating a candidate's fitness for a particular position. In addition, an employer has only 30 days to destroy all video copies of the interview if an applicant seeks such destruction. This law highlights a myriad of privacy concerns for employers evaluating the costs and benefits of incorporating AI technology into their hiring practices.
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. 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.