Illinois Restricts Use of Artificial Intelligence in Hiring

On May 29, 2019, the Illinois Legislature unanimously passed the Artificial Intelligence Video Interview Act, which, not surprisingly, addresses how employers use artificial intelligence to analyze job applicant video interviews to determine the applicant’s fitness for the position.  Under the new law (assuming it is signed by the Governor, as anticipated), before requesting an applicant submit to a video interview, employers will be required to:

• notify applicants for positions based in Illinois that it plans to have their video interview analyzed electronically;
• explain how the artificial intelligence analysis technology works and what general characteristics it will use to evaluate candidates; and
• obtain the applicant’s consent to these procedures (note: consent does not have to be in writing).

Under the bill, employers are required to destroy all copies, including back-ups, of an applicant’s video interview within 30 days of an applicant’s request.  The law also prohibits employers from sharing video interviews, except with persons whose expertise is necessary to analyze the candidate’s fitness for the position.

This new law is yet another in Illinois’ apparent effort to be at the forefront of addressing changing technologies in the workplace through legislation.  In 2008, Illinois was the first state to pass one of the nation’s first laws regulating employers’ use of employee biometric information (i.e., fingerprint information, retinal scans, facial recognition software, etc.).

Chicago Ordinance Would Require “Predictable” Scheduling

Another employment law change for Illinois employers may take place in the City of Chicago.  The City may join San Francisco, Philadelphia, and the state of Oregon, by enacting its own predictable work scheduling ordinance.  In short, if passed, the Chicago Fair Workweek Ordinance would require covered employers to provide covered employees with a predictable work schedule and would impose penalties for last minute schedule changes.

Employee Schedule Notice Requirements

This bill was introduced and failed last year in the City Council, but was reintroduced at the beginning of the City Council’s latest session with some modifications.  The revised bill, supported by newly-elected Chicago Mayor Lori Lightfoot, would become effective April 1, 2020, and will require employers to provide employees with at least ten days’ notice of their upcoming work schedules.  The notice period will increase to fourteen days on April 1, 2022.  The ordinance also will require employers to post work schedules in the workplace, however, electronic notification can satisfy the notice requirement for an employee who requests it.

If an employer adds hours to an employee’s schedule after the requisite notice period, the ordinance would permit employees to decline the additional work time.  (The ordinance is silent as to when and how an employee would have to notify the employer that they are declining additional, previously-unnoticed work hours.)  However, if the employee agrees to the additional work time, the employer would be required to pay “predictability pay,” or an hourly rate calculated using the employee’s regular rate of pay, paid in addition to pay for hours worked.  The amount of required predictability pay would vary based on several factors, including how far in advance of the additional work time that the employer provides notice of the schedule change.

The ordinance additionally will require employers to provide new hires with notice of their anticipated schedule, including the days, times, and shifts the employee will generally be expected to work and not work, an average number of hours the employee can expect to work, and whether the employee will work on-call shifts.  Further, before a new hire’s first day of work, an employer would be required to provide a work schedule covering the new hire’s first day through the next regular schedule release for current employees.

Perhaps the most restrictive portion of the proposed ordinance is that employers would be required to offer additional work hours to existing employees before hiring new employees.  The ordinance lays out a detailed process for employers to follow, but does not require employers to offer hours that must be paid at a premium rate (presumably, such as overtime).

Coverage and Penalties

“Covered employees” would include employees who work at least two hours in a two-week period within the City of Chicago’s boundaries.  Certain salaried employees would be considered exempt from the ordinance’s coverage.  “Employers” subject to the ordinance are those with 100 or more employees (in the aggregate) who either: (1) maintain a business facility within the geographic boundaries of the City of Chicago; or (2) have 30 or more locations and have employees working within the geographic boundaries of Chicago; or (3) are subject to certain City-licensing requirements.  Notably, restaurants would only be covered if they have a total of at least 250 employees and meet certain other requirements.  The ordinance also contains special rules for franchises and non-profit organizations.

The ordinance contains certain exceptions that apply to the notice period requirement, including an employer’s reduction of an employee’s hours for disciplinary reasons with just cause, or if an employee volunteers to cover hours for another employee who is unable to work his or her scheduled time.

Penalties for noncompliance include fines for retaliating against an employee who asserts any rights granted under the ordinance, and for failure to properly provide notice or keep required records.

Although predictable scheduling regulation is a relatively new thing, the recent proposal and potential adoption of it by a major US city could signal that this sort of legislation may become more common in the future.  Employers, particularly those in the retail and other industries where work hours are particularly dependent on customer needs, should closely monitor developments in this area.

As always, we will advise you if and when these laws become effective and any changes to their anticipated implementation.