The Artificial Intelligence Video Interview Act, currently titled HB2557, is one of three pending bills aimed at taming the risks posed by big data in the workplace.

When Governor Pritzker signs the bill into law, Illinois will be one of the first states to regulate the use of workplace data analytics. HB2557 focuses strictly on the use of facial recognition technology in job interviews and passed both houses on May 29, 2019. Two other bills, HB 2991 and HB 3415, would prohibit the use of predictive analytics to consider information correlating with race and zip codes when making hiring decisions, and will continue to be debated when the legislature reconvenes later this year.

According to Inc. Magazine several companies, including Unilever, IBM and Dunkin’, already use facial recognition technology to conduct automated video interviews that assess candidates’ facial expressions for personality fit. The technology can also detect signs of dishonesty by use of algorithms set to detect facial expressions believed to be triggered when people lie.

As pointed out in the Inc. article, some recruiters hail the technology as a way of avoiding the unconscious biases in human interviewers that often impede diversity hiring goals, and a means of speeding up the hiring process. But the technology also poses potential downsides. For one, it may misread temporary, situational mood changes – say, from a candidate who just broke up with a significant other or may be ill – as signs of a personality flaw. It also may misinterpret candidates’ physical abnormalities or disabilities that could potentially affect facial expressions. In either case, candidates facing an online, automated video interview may not have the opportunity to flag these concerns before the technology already has screened them out of the hiring process. Separately, employers who record and classify facial data may be collecting biometric information, subjecting them to biometric information privacy requirements.

The Artificial Intelligence Video Interview Act would address some, but possibly not all, of these issues by requiring employers who ask applicants to record video interviews and use AI analysis of the videos to do these things: (1) Notify applicants of its use AI technology and what general types of characteristics it uses to evaluate applicants; (2) Obtain applicants’ consent to be evaluated by the AI program; (3) Share applicant videos only with third parties whose expertise or technology is necessary to evaluate candidate fitness for hire; and (4)Upon the applicants’ request, destroy all copies of interview videos and instruct third parties to do the same.

Whether any of these bills pass, human resource professions should consult now with their lawyers to determine the steps necessary to minimize the potential legal risks pose by AI and data analytics in hiring and employment decisions. You can read the full text of the Artificial Intelligence Video Interview Act (HB 2557) here. You can also read the predictive analytics bills, HB 2991 and HB 3415 here and here.

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Gary Savine is an Illinois employment lawyer and founder of Savine Employment Law, Ltd. in Chicago. Gary regularly advises human resources professionals on recently enacted employment laws.