Illinois Expected to Pass Law Limiting Employers’ Use of AI in Hiring

Illinois Expected to Pass Law Limiting Employers’ Use of AI in Hiring

The Illinois legislature passed a bill on May 29, 2019, that would limit employers’ ability to use artificial intelligence (AI) in hiring. It seems likely that Governor Pritzker will sign it, since it passed unanimously in both houses.

The law will require employers who ask applicants to record video interviews and then use AI to analyze the videos (an increasingly common practice) to do the following when considering applicants for positions in Illinois:

  1. Notify applicants before the interview that AI may be used to analyze their videos;
  2. Provide each applicant with information before the interview explaining how the AI works and what types of characteristics it uses to evaluate applicants;
  3. Obtain, before the interview, consent from the applicant to be evaluated by the AI program as described in the information provided;
  4. Not use AI to evaluate applicants who have not consented;
  5. Not share applicants’ videos, except with persons whose expertise or technology is necessary in order to evaluate the applicants; and
  6. Upon request from an applicant, delete the applicant’s video and instruct anyone who received a copy of the video to also delete it.

Should the bill be signed into law, employers who have employees in Illinois should consider the following to stay in compliance:

  • Make sure AI vendors are willing to open the “black box”; that is, to explain how their algorithms work in a way that can be shared with and understood by applicants;
  • Amend consent forms as required by the law;
  • Amend vendor contracts to ensure vendors will comply with destruction requests;
  • Put protocols in place to save interview scores separately from videos, so that even if a video is destroyed per an applicant’s request, the results are saved as required by federal and state records preservation laws;
  • Make arrangements for alternative scoring of videos of applicants who do not consent to AI-scoring. Ideally, the alternative scoring should focus on the same characteristics that the AI does, so different groups of applicants are not subject to different hiring criteria.

We expect to see an increasing focus from lawmakers and enforcement agencies on “algorithmic bias” as more employers use AI and other “big data” solutions in hiring. Employers across the country will want to start considering these measures to stay ahead of the trend.

Mark Girouard provides strategic preventative advice and litigation defense to clients on a range of issues, including the use of AI and big data in hiring and recruiting. He can be reached at 612.305.7579 or mgirouard@nilanjohnson.com.