On August 9, 2019, Illinois Governor J. B. Pritzker signed into law first-of-its-kind legislation regulating the use of artificial intelligence (AI) in Illinois. As previously reported by Troutman Sanders on June 26, 2019, the Illinois legislature, in what has been described as the most momentous legislative session in decades, passed the privacy statute aimed at regulating an ever-growing issue in HR: the use of AI in the hiring process. With the Governor's signature, the statute will become effective January 1, 2020. While the use of AI in the employment decision-making process might sound futuristic, many U.S. companies already use AI to streamline hiring and make the process more objective, including scanning resumes, scheduling interviews, and recently, actually conducting the first round of job interviews. These AI interviewing programs have different algorithms and methods, but essentially, they measure an applicant's facial expression, word choice, body language, and vocal tone, among other factors.
It's been a busy year for the Illinois General Assembly, which is well on its way to creating the most regulated state in the country when it comes to employment law. We have already seen the Illinois Workplace Transparency Act passed, which will change the way arbitration and confidentiality agreements work, and seen the Illinois Equal Pay Act modified. Now, Illinois has enacted the Artificial Intelligence Video Interview Act (AIVIA), which goes into effect on January 1, 2020. The AIVIA regulates how employers use artificial intelligence to analyze video recordings of job applicants' interviews during the hiring process. Further, employers may not share applicants' video interviews, except with those who necessarily must view the videos to evaluate the applicants' fitness for hire.
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.