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Morris Manning & Martin, LLP

Illinois Takes Another Swing at Privacy and Technology: New Law Regulating the Use of Artificial Intelligence by Employers

09.19.2019

Effective, January 1, 2020, the Illinois Artificial Intelligence Video Interview Act (the “Act”) imposes duties of transparency, consent and data destruction on employers that use artificial intelligence to analyze and evaluate job applicants' video interviews for jobs that are "based in" Illinois.

The use of artificial intelligence is not unique in the hiring process; many employers use the technology for various tasks such as scanning resumes. However, the use of artificial technology to evaluate an applicant’s candidacy has become increasingly prevalent by employers.

Under the Act, any employer that conducts video interviews for job applicants for a position based in Illinois and subsequently uses artificial intelligence to analyze the video must:

  1. Notify the applicant that the employer is using the technology to analyze the video interview as part of evaluating the applicant’s overall fitness for the position;
  2. Explain how the artificial intelligence technology works and what characteristics the technology uses to evaluate the applicant;
  3. Obtain prior consent from the application to be evaluated by the artificial intelligence;
  4. Limit the distribution of the video to those persons with the requisite expertise to evaluate the applicant; and
  5. Upon the request of an applicant, the employer must destroy the video and backup copies within 30 days of receipt of the request.

Currently, the law fails to define the term “artificial intelligence” or provide guidance regarding the sufficiency of the explanation of the technology to the applicant. Moreover, although some proponents suggest the technology allows employers to interview more candidates and remove bias during live interviews, some critics raise concerns about algorithmic bias when it comes to facial expressions and inaccuracies about applicants based on race, age, disability, ethnic background, sex, or other protected characteristics. For example, algorithmic bias may work against a candidate whose disability may affect the candidate’s facial expressions, body language, or speech. 

Because of the potential for algorithmic bias, employers using artificial intelligence to screen candidates for Illinois-based positions would be wise to implement and evaluate such technology thoughtfully and methodically. Specifically, in implementing the technology, employers should seek legal counsel in negotiating the contract with the vendor providing the technology so that liabilities arising from potential algorithmic bias are addressed through an appropriate indemnification provision. Employers should also enlist the help of legal counsel to navigate the employer’s competing duties to preserve employment-related records with an applicant’s request to destroy the video and its backup copies. In addition, employers should thoroughly examine whether and to what extent the technology assigns points to—or removes points from—an applicant’s score, and perform testing with adequate controls for algorithmic bias. In evaluating the technology, employers should perform continuous examinations and, to the extent possible, request that the vendor providing the technology make any necessary updates to the algorithms. When selecting the individual or individuals performing these critical functions (whether or not such individuals are employees of the organization or engaged on a consulting basis), employers should ensure that each such individual has appropriate credentials and training to oversee the use of artificial intelligence technology in an unbiased, rigorous manner. Employers will also need to implement data management policies and procedures specific to the retention of video interviews, as well as policies and procedures which permit the business to timely respond to applicant requests to delete video interview and any copies of such interviews.

The data collected by employers during a video interview may fall under Illinois’s robust Biometric Information Protection Act (“BIPA”). BIPA requires entities to obtain individual’s consent before collecting their biometric information and develop written policies for the storage and destruction of such biometric information.  The passage of the Act is the first of its kind and coupled with BIPA, it demonstrates Illinois’s commitment to regulate the use of technology and privacy.