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New Maryland Law Requires Applicant Consent Prior to Using Facial Recognition Technology in Job Interviews

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.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 191

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About this Author

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

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,...

202-861-1863
Adam S. Forman, Epstein Becker Green, Workforce Management Lawyer, Chicago, Detroit, Social Media Issues Attorney
Member

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 newspapers, radio, and legal blogs on those topics.

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Christopher Lech, New York, Labor Attorney, Epstein Becker Law FIrm
Associate

CHRISTOPHER LECH is an Associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices. He is based in Epstein Becker Green’s New York office.

Mr. Lech:

  • Represents employers in state and federal courts and before administrative agencies and arbitration tribunals on employment-related matters involving harassment, discrimination, retaliation, breach of employment contracts, FLSA and state wage and hour compliance, and the denial of employee benefits
  • Represents management in labor-related matters,...
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