Illinois AI Video Interview Act compliance procedure
Managing HR risk while deploying AI.
One of the less talked-about AI regulations is the Illinois AI Video Interview Act (AIVIA, Public Act 101-260).
While the law is relatively short, it leaves many terms undefined (including “artificial intelligence” and “artificial intelligence program”). While there does not appear to have been much enforcement action related to it, I expect this to change as AI-related employment issues become a hotter topic.
So below is an actionable procedure to help comply with the law’s requirements.
As always, it is not legal advice.
Need help navigating the complex (and changing) landscape of AI regulation?
Purpose
To ensure equitable hiring practices as well as compliance with the Illinois AI Video Interview Act (AIVIA, Public Act 101-260).
Scope
Artificial Intelligence Systems used to analyze recorded video interviews of employment applicants for positions in the State of Illinois.
Requirements
Data owners must:
Not solely rely1 upon artificial intelligence analysis of a video interview to determine whether an applicant will be selected for an in-person interview and document additional criteria used for such selection.
Provide to each applicant, either via email or through the Artificial Intelligence System itself2, before the interview:
Notification artificial intelligence may be used to analyze the applicant's video interview and consider the applicant's fitness for the position.
An explanation of how the Artificial Intelligence System works and what general types of characteristics it uses to evaluate applicants.
Ensure (and document completion of the requirement) either:
The candidate consents, before the interview and via email or through the Artificial Intelligence System itself, to be evaluated by artificial intelligence; or
The candidate’s recorded video interview is not evaluated using artificial intelligence.
Ensure recorded videos are only shared with persons whose expertise or technology is necessary in order to evaluate an applicant's fitness for a position.
Ensure any third parties with access to recorded video interviews of applicants analyzed with Artificial Intelligence Systems are contractually obligated to delete all copies upon request.
Ensure retention (and then destruction) of the following records per below:
Notification artificial intelligence may be used | 3 years from provision.
Explanation of how the Artificial Intelligence System works and what general types of characteristics it uses to evaluate applicants | 3 years from provision.
Candidate’s consent to be evaluated by artificial intelligence | 3 years from provision
All copies of the applicant's interview video | 30 days after applicant requests they be destroyed.
While this is not a requirement of the statute, if an employer “relies solely upon an artificial intelligence analysis of a video interview to determine whether an applicant will be selected for an in-person interview,” the State of Illinois requires reporting on a range of demographic information for applications. Because this requirement is complex, I recommend simply avoiding the burden by:
Using at least one other method to determine selection for in-person interviews. Interestingly, the law doesn’t prohibit using AI video analysis along with (only) other forms of AI analysis. So you could perform just AI video analysis and AI resume analysis to determine if a person gets an in-person interview, without triggering the reporting requirements.
Documenting and enforcing a policy of giving no one in-person interviews and doing all live, person-to-person interviews remotely via video call. Yet another reason to go 100% remote!
The AIVIA does not prescribe a method of providing notice and confirming consent, but in the interest of providing prescriptive guidance, I offer these two methods.