In a recent Bloomberg Law article, we reported on legislative developments regulating the use of artificial intelligence (“AI”) in employment law decisions. On May 11, 2020, one of the pieces of proposed legislation we discussed, Maryland’s H.B. 1202, became law without Governor Larry Hogan’s signature. As we reported, H.B. 1202 prohibits employers from using facial recognition technology during pre-employment job interviews without the applicant’s consent. To use facial recognition services in interviewing employees, an employer must obtain an applicant’s written consent and waiver that states the applicant’s name, the date of the interview, that the applicant consents to the use of facial recognition during the interview and that the applicant has read the waiver. Although the law defines terms such as “facial template” and “facial recognition services,” the terms provide little guidance and leave broad gaps for interpretation.
This new workplace AI law will take effect on October 1, 2020. Maryland employers that intend to use facial recognition technology in job interviews after that date should prepare to provide adequate notice and obtain written consent from applicants. Employers outside of Maryland using or considering using workplace AI technologies should also take note of this development, as legislation like this can be expected in other jurisdictions going forward.