While the federal government attempts to pass laws regulating cybersecurity, state laws continue to proliferate. Employers need to be aware of the legal landscape in this area.
Federal legislation, called Federal Algorithmic Accountability Act, was introduced by congressional Democrats but has not yet to passed. The Act’s requirements would be similar to the European Union, where consumers and employees can know what information a company has about them and ask that company to delete the information. The act also says that if information is compromised, there will be a very short timeline for notifying those who were affected. The White House has joined in and recently launched AI.gov, designed as a platform for governmental agencies to share initiatives to legislate controls over artificial intelligence.
While we are watching the federal developments, some cities and states are taking matters into their own hands. San Francisco has a new law that halts the use of facial recognition software for local government use. While this does not currently affect employers, it will be interesting to see its reach as other states, such as Massachusetts, begin to consider it. Municipalities often pass laws that only impact the municipality, while states often pass laws affecting organizations.
Illinois was first to pass a biometric law, and versions have been passed in other states. A review of current cases shows that employees are filing suits against any number of employers requesting and keeping biometric data in breach of the laws’ requirements. If you have biometric data, ensure that you have reviewed applicable state statutes. It is best to look at the law in the states where you have both employees and customers, as laws can cover all citizens within a state. Facebook apparently did not review the law carefully and ended up settling with plaintiffs for $550 million.
Now Illinois is also the first state to pass the Artificial Intelligence Video Interview Act. Under this law, employers must:
- Notify applicants for jobs in Illinois if video interviews are analyzed electronically
- Explain to applicants how the videos using artificial intelligence analysis technology work and what characteristics will be used to evaluate the videos
- Obtain written consent to use the videos for review by artificial intelligence.
What is interesting is that if employers do not obtain consent, they needn’t consider the applicant further. Employers should be aware that applicants who have been denied may have recourse under current discrimination laws when practices result in individual discrimination or adversely impact protected groups.
If you have multi-state operations, these laws could impact your business. We will be watching to see if this newest law becomes more onerous and if other states follow suit, passing their laws to protect applicants who submit to video interviews that are later analyzed using artificial intelligence. Laws impacting other employment practices may also be in the works, and Employers Council attorneys are researching how law and changing technology interact.