Artificial Intelligence.

 

Companies interested in capturing job interviews on video can now deploy artificial intelligence (AI) to help analyze qualities like body language or facial expression. However, such a trend could potentially see law firms and corporate legal attorneys racing to stay on top of yet another disparate set of state-level laws pertaining to the use of technology.

Illinois, for example, is the first state to formally establish legal parameters around the use of AI in video interviews. Passed in August and scheduled to go into effect on January 1, 2020, the Artificial Intelligence Video Interview Act addresses responsibilities companies hold with regards to consent, transparency and the destruction of the original video as well as all subsequent copies.

The law could set the table for a patchwork of similar laws to come—and that may not be a scenario that companies or their legal teams are eager to embrace.

According to Jeremy Mittman, a partner at Mitchell Silberberg & Knupp, employers operating in more than one jurisdiction already contend with variances in local laws concerning things like sick leave, which can differ from state-to state or even county-to-county.

"I've spoken with employers who would almost prefer in some ways a slightly more onerous law that applied everywhere as opposed to slightly more employer-friendly laws that were in a patchwork," Mittman said.

Still, employers may want to start wrapping their minds around the possibility of a state-centric approach to regulating AI use in video interviews. K.C. Halm, a partner at Davis Wright Tremaine, believes that states will lead the charge on regulating AI technology.

Ironically, the push towards further regulation may be somewhat driven by employers themselves. Halm expects businesses to increase their rate of AI adoption over the next few years to help streamline resource-intensive hiring activities.

For example, video interviews parsed with AI could help an employer looking to fill 100 positions at once to review nearly as many candidates in the course of a single day.

"I think AI adoption is going to continue at a break-neck pace, and I think state, local and federal regulators are beginning to become aware of this and will be more attentive to this technology in the months ahead [and] years ahead too," Halm said.

This means that depending on the scope of a company's operation, they could be dealing with multiple definitions of transparency, varying timelines for the destruction interview footage and competing expectations of notice.

Illinois' Artificial Intelligence Video Interview Act, for example, requires companies to explain to applicants how the AI technology involved works and the characteristics it evaluates. The law also mandates that footage be destroyed within 30-days upon applicant request.

The way that other states tackle those issues is likely to be similar, but ultimately different.

"It's rarely the case that states just copy other states' laws. They always try and put their own gloss on it," Mittman said.

A patchwork of specially-tailored regulations like the one in Illinois may not be the only source of headaches for businesses in relation to video interviews and AI. Other employment-related laws, such as The Americans with Disabilities Act, could also be triggered under the wrong circumstances.

AI tools that analyze a person's expressions, for example, could inadvertently discriminate against a job candidate who has a disability that impacts their ability to smile or display other facial cues as recognized by the software.

Mittman believes it's possible that an AI could even register conditions like anxiety or depression, which can be classified as disabilities under the law.

"It's not going to be a defense to say, 'We didn't intend to discriminate, we didn't intend to have disparate impact on minorities or other protected categories,'" Mittman said.