As companies increasingly look to artificial intelligence (“AI”) solutions to streamline their business practices, a new area has popped up: the use of artificial intelligence in analyzing videos of job interview applicants. For companies with tremendous volumes of job applicants, AI can be helpful in sorting through the applicant pool to narrow down the applicants who companies may want to bring in for in-person interviews or hire. As with most things technology, the laws are struggling to keep up with the rapid pace of innovation. However, Illinois continues to lead the nation in increasingly regulating the use of advancing technology. 

Though riddled with undefined terms and ambiguities, the Illinois Artificial Intelligence Video Interview Act (the “Act”)—effective January 1, 2020—requires businesses who utilize AI to evaluate job applicants’ video interviews to provide notice and obtain prior consent before doing so, and includes restrictions on video sharing and retention.

The Act is intended to be considered a “baby step” in regulating AI, but could have broader-than-intended consequences as it follows another privacy-focused piece of legislation currently the subject of multiple class action lawsuits in Illinois, the Illinois Biometric Information Privacy Act. BIPA requires companies to get prior consent before collecting biometric data (e.g., fingerprint or retinal scans) from individuals.  Unlike BIPA, which permits individuals to sue when they are “aggrieved” by a violation, the Act does not appear to expressly allow individuals to file lawsuits for violations. The absence of a private right of action or actual damages, however, is unlikely to deter plaintiffs.

What are companies to do if they are interested in using AI to evaluate applicants’ video interviews?

• Understand the technology being used and the data points being analyzed by AI.
• Create policies that incorporate the requirements of the Act.
• Notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position.
• Provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants.
• Obtain prior consent from the applicant to be evaluated by the artificial intelligence program as described in the information provided by having them sign an acknowledgement form.
• Keep records of compliance with the Act.
• Restrict sharing of the applicant videos “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”
• Inform applicants of their right to request deletion of any video interviews/backup copies, and delete such videos within 30 days of receiving a request.
• Instruct third parties with whom the company you shares the videos to delete any copies in their possession after the company receives a deletion request.
• Revise the company’s privacy policy to include disclosure of the collection of information via video application and the sharing of the videos/personal data with third parties.
• Expand any company biometric policy to cover AI, as applicable.

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