March 27, 2023

Volume XIII, Number 86


March 24, 2023

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Companies Using Video Interviewing Beware: New Obligations for Positions Based in Illinois

Increasingly companies are using third-party digital hiring platforms to recruit and select job applicants.  These products, explicitly or implicitly, promise to reduce or eliminate the bias of hiring managers in making selection decisions.  Instead, the platforms grade applicants based on a variety of purportedly objective factors.  For example, a platform may scan thousands of resumes and select applicants based on education level, work experience, or interests, or rank applicants based on their performance on an aptitude test – whatever data point(s) the platform has been trained to evaluate based on the job opening.

Video interviews constitute one type of product offered by certain digital hiring platforms.  Video interviews may be offered in a variety of forms – from live interviews conducted by a hiring manager but simultaneously recorded for future audiences, to recorded interviews conducted by the computer program, giving applicants a limited time (e.g., 30 seconds) to record an answer to each question.  In any recorded form, these digital hiring platforms use artificial intelligence (“AI”) to analyze an applicant’s answers.  AI may be used to analyze facial expressions or eye contact, or even the speed of an individual’s response, in order to evaluate the quality of an applicant’s answers.

Such products raise a host of legal issues, including questions about hidden biases, disparate impact, disability accommodation, and data privacy.

One state has taken an initial step to put employees on notice of the use of these products. The Illinois Assembly and Senate recently passed the Artificial Intelligence Video Interview Act, a bill that creates disclosure requirements for companies that utilize video interview technology that relies on AI.  Specifically, the bill, which is expected to be signed into law by Governor J.B. Pritzker but has enough votes in the legislature to survive a veto, requires an employer seeking to use AI-enabled video interviewing technology to do the following before hiring for an Illinois-based position:

  1. Notify each applicant before the interview that AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position;

  2. Provide each applicant with information before the interview explaining how the AI works and what general types of characteristics it uses to evaluate applicants; and

  3. Obtain prior consent from the applicant to be evaluated by the AI program.

The bill also requires employers to take steps to protect applicants’ privacy.  Under the bill, video interview recordings can only be shared “with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”  In addition, upon request from the applicant, employers must destroy all copies of the videos (including backups) no later than 30 days after the applicant requests the company do so.  This destruction requirement may be burdensome for employers, who should work with the vendor to ensure proper storage and timely destruction of any such videos.  Employers should also be prepared for conflicts between this provision and legal requirements to maintain copies of relevant information if litigation relating to such information is reasonably anticipated.

Illinois has a history of passing expansive laws protecting employees’ privacy, such as its 2008 Biometric Information Privacy Act (“BIPA”).  BIPA was one of the first acts to require notification and consent in collecting employee biometric data, and now the Artificial Intelligence Video Interview Act appears to be a first-of-its-kind law in the nation with similar notification and consent procedures.  While BIPA was an often ignored statute for almost a decade, recently there has been a slew of litigation involving the statute.  The Artificial Intelligence Video Interview Act could result in a similar wave of lawsuits, provided the Act allows for a private right of action (which is not clear, as currently drafted).

Assuming Governor Pritzker signs the bill into law as written, there are many questions left unanswered.  For instance, the bill does not define what AI means.  It also does not provide guidance on the specific information an employer must provide to a candidate to satisfy its obligation to describe “how” it works.  The 30-day deletion requirement is similarly vague and may conflict with other legal, statutory and/or regulatory obligations.  Nevertheless, it is likely that Illinois’ Artificial Intelligence Video Interview Act will not be an outlier.  Other jurisdictions may quickly follow suit.  Accordingly, employers using AI technology for video interviewing should, at a minimum, start considering how to provide notice and obtain consent from applicants before conducting interviews.  Notably, however, compliance with this Illinois law will not absolve an employer from liability for a product that exhibits other legal deficiencies.  Employers are advised to consult with counsel before implementing any type of digital hiring platform.

©2023 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume IX, Number 162

About this Author

Adam S. Forman, Epstein Becker Green, Workforce Management Lawyer, Chicago, Detroit, Social Media Issues Attorney

ADAM S. FORMAN is a Member of the Firm in the Employment, Labor, and Workforce Management practice, based in Chicago and Detroit (Metro). As noted in the 2015 edition of Chambers USA, Mr. Forman “is a renowned expert in social media issues relating to the workplace” and also “focuses on litigation, training and preventive advice on the employment side.” A frequent writer and national lecturer on issues related to technology in the workplace, such as social media, Internet, and privacy issues facing employers, Mr. Forman is often interviewed by...

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

Matthew Savage Aibel, Epstein Becker Green, Trade Secrets Attorney, Breach of Non-Compete Agreements Lawyer

MATTHEW SAVAGE AIBEL is an Associate in the Litigation and Employment, Labor & Workforce Management practices, in the New York office of Epstein Becker Green.

Mr. Aibel:

  • Assists in the representation of clients in complex commercial litigation, business disputes, and breach-of-contract matters

  • Provides assistance with litigation matters involving the breach of non-competition and non-solicitation agreements, the misappropriation of trade secrets, and...