New Illinois Law Governs Use of Artificial Intelligence During Interview Process

Holland & Knight LLP

Holland & Knight LLP

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. Gov. J.B. Pritzker signed the bill on Aug. 9, 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.

The Act also prohibits the employer from sharing applicant videos, except with individuals who have expertise or technology necessary to evaluate the applicant's fitness for a position. If an applicant requests that the video interview be destroyed, the employer must comply within 30 days after receiving the request. The employer then must instruct anyone else who received a copy of the applicant's video to destroy it, and those individuals also must comply.

The Act is short on details and contains no definitions. The assumption is that the Act applies to all employers seeking to fill positions in Illinois and protects any candidate for that position regardless of where the interview occurs. Notably, there is no definition of what constitutes AI. The Act also does not specify the form that the notice given to candidates must take, or the level of detail in the explanation of how the AI works. Further, the prohibition against sharing the video is ambiguous in terms of what "expertise is necessary in order to evaluate an applicant's fitness for a position." Finally, the 30-day destruction requirement likely runs afoul of certain federal- and state-mandated document retention requirements, and may interfere with the litigation process.

Illinois is the first state to pass legislation regulating the use of AI in the employee-hiring arena. Thus, there is no comparative legislation in other states from which to gain interpretive guidance. Although relatively few employers currently use AI to evaluate job candidates, that may change as this technology continues to develop. Illinois currently stands at the vanguard of this emerging technology and may be a model for other states in the future.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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