On August 9, 2019, Illinois became the first state to legislate the use of artificial intelligence (AI) in the employment context. The Artificial Intelligence Video Interview Act (AI Interview Act) targets businesses that require applicants to provide a video interview and thereafter utilize AI technology to analyze the candidate's body language, speech patterns, and other characteristics to score and predict a candidate's likelihood of success at that organization. The law will go into effect Jan. 1, 2020.
Understanding "Artificial Intelligence"
Though the act itself doesn’t define AI, in general, artificial intelligence is defined as the ability of a computer system to perform tasks commonly associated with intelligent beings, such as learning, problem-solving, visual perception, and decision-making. The term was first coined in 1955 by computer scientist John McCarthy. In the early years, AI was often feared for its potential to replace human employees with robots. More recently, it is being embraced as a vehicle to make jobs more efficient and productive along with human counterparts.
Most business professionals can relate to the dread of sifting through a large pile of resumes to determine who will be the best candidate for an open position. The interview phase can be even more intimidating as interviewers assess, in a short period of time, who will be a perfect fit within the organization. Factor in the knowledge that applicants are putting their best foot forward and have likely practiced their answers to common interview questions, and it becomes almost impossible to ascertain a candidate’s true potential.
The solution, for many companies, is turning to AI to vet potential applicants. Software programs, utilizing AI technology, create a simulation of what candidates may do in a regular day at the job for which they are applying. The program then “reads” the individual’s language processing and uses machine learning to build a psychological profile that forecasts how well the applicant will fit into the culture of the business. For example, the use of words such as “please” and “thank you” may fit well into a position working with customers, whereas an evident attention to detail may make someone ideal for a project manager role. In this way, a company is able to assess thousands of candidates and narrow it down to the top 2-3 percent to bring in for an interview.
Some companies are manufacturing AI programs that are even more sophisticated and able to read emotions that even the candidate themselves may be unaware of. For example, one such company, HireVue, has developed software that can evaluate an applicant’s video interview by assessing voice inflections and subtle expressions that may be missed through human interaction. Renowned psychologist Paul Ekman identified 10,000 facial expressions that can flash by in as quickly as 1/25 of a second. AI is able to catch these subtle nuances to identify emotions that a candidate may subconsciously express.
The benefits of using AI in the application process and interviewing stage are impressive:
- It saves time in sorting through multiple candidates
- It takes some of the guesswork out of identifying top contenders
- It reduces the potential for interviewer bias
- It creates a better experience for the applicant by reducing processing time and complicated procedures
However, AI programs also have their pitfalls:
- They can be costly and priced out of a smaller company’s budget
- Biases can still be programmed into the software, whether intentionally or unintentionally
- They don’t take into account human emotions or values
- They may not account for creativity and imagination
This is an evolving technology that is continually advancing in its functions, but some argue that it can never take the place of human interaction. A business must assess its individual needs in order to discern whether or not AI technology is a feasible solution for its work environment.
What the Act Requires
Under the AI Interview Act, employers utilizing AI technology for video interviews will need to comply with the following requirements:
- Prior to the interview, notify applicants in writing that AI may be used to analyze the applicant's facial expressions and consider the applicant's fitness for the position.
- Prior to the interview, provide applicants an explanation of how AI works and what characteristics it uses to evaluate applicants.
- Prior to the interview, obtain applicants’ written consent to be evaluated by the AI program.
- Maintain confidentiality by not sharing applicant videos, except with persons whose expertise is necessary in order to evaluate an applicant's fitness for a position.
- Destroy all copies of the video interview, whether in possession of the employer or a third party, within 30 days of the applicant’s request.
The act’s brevity leaves several issues unaddressed, which may cause confusion for employers until guidance is provided. Specifically, it fails to address the following:
- How AI is defined
- Specifically what information needs to be provided in disclosures
- Whether a physical signature is required or whether an e-signature would suffice
- Enforcement or damages in the case of a violation
- The scope of the act (for example, whether it applies to out-of-state employers hiring for a position in Illinois)
Regardless of the ambiguities, businesses are required to comply with the act’s provisions beginning Jan. 1. Prior to that date, companies should establish policies and procedures for conducting AI interviews, including obtaining applicant authorization, confidentiality practices, and a process for video destruction. Additionally, notification forms and AI explanations should be drafted and ready for use.
Though the AI Act is specific to Illinois, it may be indicative of what’s to come in other states. As companies increase their use of AI in the recruiting process, it’s likely there will be more laws regulating its use. Businesses are encouraged to monitor new regulations, case law, and agency guidance addressing the use of AI in hiring.