Tuesday, December 3, 2019

The Artificial Intelligence Video Interview Act Takes Effect January 1

In the flurry of bills passed in last Spring’s legislative session, one that fell under the radar was the Artificial Intelligence Video Interview Act (codified at 820 ILCS 42/1, et seq.).  The Act attempts to regulate AI interviewing programs that employers are increasingly using. According to TechRepublic, 29% of employers regularly use some form of AI.

The Act requires employers to:
  • Notify each job 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.
  • Provide each job applicant with information before the interview explaining how the AI works and how it evaluates applicants.
  • Obtain consent from the job applicant before the interview for the use of the AI program.

The law leaves a lot of questions unanswered. First, what are the consequences if an employer fails to comply with this law? It says nothing about the damages or penalties that will be assessed against an employer who fails to comply.

Second, what constitutes artificial intelligence? The law provides no definition. There is no settled legal definition of artificial intelligence of which I am aware. Basic computer programs could be considered artificial intelligence, so the scope of this law could be enormous.

Third, does this apply to every employer? Many employment statutes exempt small employers. This statute apparently does not.

All of these unanswered questions lead me to believe the law will be revised during the next legislative session. For now, if you choose to video interview your employees, let them know that artificial intelligence may be used to analyze the video. Artificial intelligence could be applied so broadly that you probably should provide this notice to employees even if you only will save the video on a computer. Explain what technology you plan to use to analyze the video, and make sure to get the applicant’s consent before the interview.

Let me know if you have questions about this somewhat opaque law.