Will California Join Illinois in Limiting Use of Artificial Intelligence in Hiring Decisions?

The Illinois General Assembly recently passed a statute to limit the use of artificial intelligence (“AI”) in hiring decisions made by employers. Specifically, the statute is aimed at having an AI program evaluate candidates based on video interviews. See news report here.

The Act, called the Artificial Intelligence Video Interview Act,- requires that, before an employer can use AI to evaluate an interview, a written disclosure must be given to the applicant and the applicant must consent. The disclosure must state the following:

  • That an AI may or will be used to analyze the applicant’s video interview
  • That an AI may or will be used to consider the applicant’s fitness for the position
  • Must 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

The statute prohibits the use of AI for evaluation unless consent is obtained from the applicant. The statute also limits the extent to which a recorded video can be shared and with whom. Basically, only those who need to see the interview for the purpose of making a hiring decision are permitted access. Finally, the statute mandates destruction of the video within 30 days after request for deletion/destruction is received from the person who has been recorded. See text of the Act here.

Supposedly, the reason for using an AI program to evaluate potential job candidates is to eliminate bias that might be held by human evaluators. But privacy and worker advocates have been concerned about the expansive nature of the evaluation that is done. AI can be programmed to analyze facial expressions and/or eye contact, the speed of a person’s response, and other non-verbal cues that are not generally considered relevant to most job applicants. This sort of evaluation can put applicants at a significant disadvantage. Others have raised ethical and moral issues about whether using an AI is itself a form of bias. See Harvard Review article here. Given those concerns, rather than ban the practice entirely, Illinois lawmakers have now required that employers must disclose the use of AI and must obtain consent.

Note that the Illinois statute is not limited to Illinois employers. Thus, the statute will apply to any California employer conducting employment videos in Illinois.

Here in California, the new Illinois statute is likely to prompt action by the State Assembly. Last fall, the state instituted Twenty-Three Principles to guide the development of AI and enacted a law prohibiting the use of internet “bots” where the bots are not disclosed as artificial devices. See our discussion here. Illinois has been at the forefront of some prohibiting misuse of technology and California legislators have taken notice. Illinois was the first state to regulate the use of biometric data; subsequently, California included regulation of biometric data in the California Consumer Privacy Act passed in 2018. It is reasonable to expect action from the State Assembly on use of AI in hiring decisions.

Call San Diego Corporate Law Today

For more information, call corporate attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters and he proudly provides legal services to business owners in San Diego and the surrounding communities. Call Mr. Leonard at (858) 483-9200 or contact him via email. Like us on Facebook.

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