New Illinois Bill Sets Rules for Using AI with Video Interviews

 

By Dinah Wisenberg Brin July 1, 2019
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​The Illinois Legislature recently passed a measure that could provide a blueprint for other states that want to set standards for the use of artificial intelligence (AI) in hiring and other HR activities.

Under the unanimously approved bill, which Illinois Gov. Jay Robert "J.B." Pritzker is expected to sign, employers that use AI technology to analyze job applicants' video interviews must comply with new rules meant to protect candidates.

The Bill's Requirements

The bill requires employers that are considering candidates for positions based in Illinois to do the following:

  • Tell applicants they are using AI to analyze video interviews before asking them to record and submit such interviews.
  • Explain to candidates before interviews how AI works and what characteristics it will evaluate.
  • Obtain applicants' consent to be evaluated by AI technology before the interviews.
  • Limit sharing of video interviews to individuals whose expertise they need to evaluate job candidates.
  • Destroy any video and backup copies within 30 days of an applicant's request.

While the legislation may need clarification or correction, it likely supports—rather than hinders—employers' use of AI in HR, according to Garry Mathiason, an attorney with Littler in San Francisco.

"It can encourage the use of this technology because it starts answering the question of what's permissible," said Mathiason, who considers the bill a starting point for other states in regulating the use of AI in HR. The bill shows AI's acceptability, he said.

Some employers have hesitated to adopt advanced technology because of uncertainty about potential regulatory requirements, he explained. Illinois' guidelines provide some certainty and will likely lead to wider use of video interviewing and AI-based evaluative technology, Mathiason said.

"I wouldn't be surprised to see more of this type of legislation," said labor and employment attorney Mark Girouard from Nilan Johnson Lewis in Minneapolis. "I think Illinois is leading the way … but other states, like California and New York, are now taking up hiring algorithm legislation, too."

That's not to say the Illinois measure doesn't pose potential challenges.

While transparency is important, figuring out exactly how an algorithm works can be extremely difficult, if not impossible, Mathiason said, noting that AI programs use advanced processes to look for patterns. AI software developers probably won't be willing to go far in trying to explain the process, he added.

Exactly how specific employers will have to be in explaining AI is unclear, Girouard said.

Meanwhile, the Illinois bill's requirement to destroy videos on request could conflict with federal and other state laws demanding preservation of evidence.

It's also unclear whether the Illinois legislation allows an employer to drop consideration of a candidate who doesn't consent in advance to AI evaluation, Mathiason said. While the bill prohibits employers from using AI to evaluate applicants who don't give consent, he said, it doesn't explicitly bar them from removing such candidates from the hiring process.

"If the bill aims to give applicants the choice to be evaluated with or without AI, clarification will have to come through amendment or by judicial or administrative decision," he said.

Without clarification, employers could potentially expose themselves to lawsuits by choosing not to consider applicants who withhold consent to AI evaluation, he added.

"Risk-adverse employers may, as a practical matter, elect to provide non-AI-assisted video evaluations for the expected few who would not consent," Mathiason said.

Girouard, who called the Illinois legislation fairly narrow, said he expects to see broader laws governing AI introduced in Illinois and elsewhere. Employers are going to continue to apply AI solutions, Girouard said, but it needs to be "explainable AI. That's really the goal of the legislation."

Companies have been boosting their HR investments in AI and similar technology. Mercer's 2019 Global Talent Trends report found that 60 percent of companies around the world planned to increase workplace automation this year.

Companies have used AI in several steps of the hiring and employment process:

  • Engaging with job applicants.
  • Identifying the best candidates based on social media profiles or other public information.
  • Screening and assessing candidates during recruitment.
  • Identifying employees at risk of leaving.
  • Assisting in performance management.

[SHRM members-only platform: SHRM Connect]

Global and Ethical Issues

Athena Karp, CEO and founder of New York-based artificial intelligence HR tech company HiredScore, sees the Illinois bill as similar to recent global legislative trends in three main data-privacy areas: individual consent to be processed by AI solutions, clarity on how the algorithms evaluate candidates and individuals' ability to get their data deleted upon request.

Karp, whose firm provides data solutions—but not video interviewing software—to HR teams, agreed legislation should give candidates the right to know that certain technologies are going to be used in the hiring process and the right to have their data deleted.

Karp said companies that are developing these technologies should correct potential bias and adhere to ethical standards.

She agreed that disclosures, transparency and data deletion are all important but said, "I'd also like to see legislation that holistically addresses and provides frameworks," such as requirements for separating race and gender data from decision engines. She also would like to ensure hiring processes don't directly or indirectly lead to decisions tied to race, gender, socioeconomic status or personal interests that are not related to the job that nonetheless could lead to discrimination.

The right legislation can help drive the HR-technology industry to be more ethical and unbiased, according to Karp, who said tech companies should also apply their own standards, irrespective of legislation, to ensure the technology and products they build meet the highest ethical and legal standards.

Dinah Wisenberg Brin is a freelance journalist and writer based in Philadelphia.

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