The State of Illinois recently enacted legislation entitled the Artificial Intelligence Video Interview Act which took effect on January 1, 2020. Employers who use Artificial Intelligence to analyze videos of job applicants are subject to the requirements of this law. Artificial Intelligence interviewing is growing substantially in the Private Sector. A survey last year of over 1,300 HR Professionals and In-House Counsel indicated that more than thirty-five (35%) percent of those responding are using Artificial Intelligence in the recruiting and hiring process.

The Artificial Intelligence Video Interview Act applies to any Employer that may ask an applicant to record video interviews and uses an artificial intelligence analysis when considering applicants for positions based in the State of Illinois. The Act imposes the following requirements on Employers:

1. The Employer must notify each applicant before the interview that artificial intelligence may be used to analyze the applicant’s video interview and could be used to consider the applicant’s fitness for the position interviewed for; and

2. Provide each applicant with information before the interview explaining how the artificial intelligence concept works and what general characteristics are used to evaluate applicants; and

3. Obtain before the interview consent from the applicant to be evaluated by the artificial intelligence program as set forth by the Employer; and

4. The Employer may not share the applicant’s videos except with persons whose expertise and/or technology is necessary to evaluate the applicant’s fitness for a position; and

5. Employers will be required to delete an applicant’s video within thirty (30) calendar days after a receipt of a request from the applicant to delete that interview and the Employer must instruct any and all persons who have received copies of the applicant’s video interview to also delete it.

While the Act is relatively short, it does not specify or define who are the Employers covered by it nor does it define the meaning of “applicants for positions based in Illinois”. Would the law apply to an applicant who may be interviewed in the State of Illinois for a position in another State? Nor does the law provide any guidance as to “what is artificial intelligence analysis”. Is this something that will need to be defined by litigation?

It is also interesting to note that in accordance with requirements of the Equal Employment Opportunity Commission, private employers are required to retain hiring-related records for one (1) year from the date of making the record. What if an applicant, who has been subject to artificial intelligence analysis, requests that the video be destroyed within six (6) months of the interview? Does the Employer need to comply with the Artificial Intelligence Act and destroy the record as requested by the applicant within thirty (30) calendar days as stated in the Act and violate the requirement of record retention as created by the Equal Employment Opportunity Commission? We are getting pretty close to putting Employers in a situation of making the proverbial “Hobson choice”.

Certainly, the future of this legislation will be determined through future court analysis. What that will bring is anyone’s guess!

Questions? Contact attorney Walter J. Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com