New Interview Privacy Protection Set To Take Effect January 1, 2020 Just How “Intelligent” Are Your Hiring Practices?

Illinois lawmakers have passed new legislation, The Artificial Intelligence Video Interview Act, which governs the use of artificial intelligence (“AI”) during the interview process. The new law is effective January 1. 2020 and will impose new restrictions and obligations on employers using AI in the hiring process.

Artificial Intelligence can be helpful in sorting through an applicant pool to narrow down the applicants who companies may want to bring in for an interview or hire. During the hiring process, facial recognition technology can be used to analyze an applicant’s facial features (i.e. brow raising, eyes widening, smiling, etc.) as well as the use of language and verbal skills (i.e. passive or active voice, speed, tone, etc.) to infer characteristics that may correlate to job performance. The other side of the coin is that an argument can be made that the use of this technology perpetuates gender, racial, age and other biases that can lead to employment discrimination.

The new law imposes an informed consent obligation on employers seeking to use this technology, regardless of size or revenue. This is somewhat similar to an employer’s obligation under Illinois Biometric Information Privacy Act (BIPA) which requires written consent from an individual before the collection of biometric identifiers. Under the new law dealing with AI, employers, regardless of size or revenue, must do all the following, when considering an applicant for a job interview BEFORE asking that applicant to submit to a video interview: 

  1. Notification: Employers must notify applicants that AI will be used in the video interview process for the purpose of analyzing an applicant’s facial expressions and to consider the applicant’s fitness for a particular position. Applicants must be provided with an information sheet prior to the interview detailing how AI works and the characteristics used for evaluation;
  2. Consent: the applicant must give written consent to be evaluated by an AI program during the interview process. An employer does not need to consider an applicant who refuses to consent;
  3. Limits on AI use: Employers may not share applicant videos, except with persons whose expertise is necessary in order to evaluate an applicant’s fitness for a particular position; and
  4. Data Destruction: If an applicant requests destruction of the video interview, the employer must comply within 30 days upon receiving the request, as well as instruct anyone with a copy of the to destroy their version of the video.

Illinois is the first state in the country to have a law dealing with artificial intelligence in the hiring process. Other states may soon follow. At the Federal level the EEOC has been taking notice of big data technologies and the potential that the use of such technology may be in violation of existing employment laws. While the EEOC does not yet have a policy on AI-based tools in the workplace, it has expressed the view that employers must consider the potential exposure and risks to privacy when handling employee data generated by this emerging technology

With over 34 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at through our website.          


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