States are beginning to regulate AI-based jobs without federal guidance

AI Video & Visuals

Employers have long used artificial intelligence to verify resumes submitted in response to job postings that previously used text search. But today, employers have access to AI-powered algorithms that go beyond just searching for identified keywords.

Modern forms of AI can understand and compare experience across resumes to better assess a candidate’s work experience and compare it to the experience required for open positions.

The Equal Employment Opportunity Commission issued a “technical assistance” document in May 2022 regarding employers’ compliance with Americans with Disabilities Act requirements when using AI in their employment, but no applicable federal law .

In 2022, Congress considered the Algorithm Accountability Act. The law required employers statewide to conduct AI decision impact assessments. The bill never made it through the House Energy and Commerce Committee. On January 31st, the EEOC held a public hearing to explore the potential benefits and harms of using AI in hiring decisions, but it did not become a directive.

Given the lack of federal law and EEOC guidance, states will have to confront these new technological advances directly. Most states do not have relevant regulations. Although some states are considering it, only a few have enacted legislation regarding the use of AI to screen job candidates.


Employers in Illinois should pay attention to the artificial intelligence video interview method. The law requires employers who use her AI-powered analytics in interview videos to:

  • Notifying each applicant about the use of AI technology
  • Explain AI technology to applicants, how it works, and what characteristics we use to evaluate applicants
  • Obtain the consent of the applicant before the interview

The video must be destroyed within 30 days upon request of the applicant, and employers must limit distribution of the video to individuals who need their expertise to assess the applicant.

If an employer relies solely on AI to make threshold decisions before a candidate progresses to an in-person interview, the employer can determine which applicants do not progress to an in-person interview and who those applicants ultimately must track the race and ethnicity of Hired.


Maryland employers are prohibited from using facial recognition service technology unless the applicant signs a waiver. The waiver must include:

  • Applicant’s name
  • Interview date
  • Applicant’s consent to the use of facial recognition during the interview
  • Confirmation that the applicant has read the consent waiver.

new york city

New York City recently passed the Automated Hiring Decision Tools Act, which will take effect April 15, 2023. The law requires annual screening and auditing of the use of AI technology used in employment decisions to ensure that its use does not lead to discrimination or discrimination. Weird impact.

This “bias audit” must be conducted by a third party and the results published on the employer’s website. Employers must inform applicants of the AI ​​tools being used and, where possible, provide applicants with alternative selection processes or accommodations.

Countries/regions considering legal revisions

Additional AI methods are expected. Washington, D.C. is considering his 2023 Algorithmic Discrimination Act, which prohibits discrimination based on computer algorithms.

Employers in DC are also required to conduct annual third-party bias audits of algorithms.The law also requires employers to inform employees and applicants about the use of AI in hiring decisions. increase.

California, through the California Fair Employment and Housing Council, is considering a similar regulation for 2022. The proposed regulation would hold employers accountable for controlling AI tools that have a discriminatory impact. California’s proposed regulation is broader and seeks to hold AI tools accountable if they cause discriminatory effects, even if automated systems are ostensibly neutral. . California therefore sought to eliminate the need to demonstrate discriminatory intent.

The use of AI technology by employers is a rapidly evolving legal area that presents unique challenges. As more states and federal governments seek to impose new regulations, employers should closely monitor the development of new laws.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publishers of Bloomberg Law and Bloomberg Tax, or their owners.

Author information

Paul W. Daugherity is a partner in employment and general liability defense in the Chicago office of Kaufman, Dolowich & Voluck.

Bruce Liebman is a co-managing partner of Kaufman Dolowich & Voluck’s Florida office and practices labor and employment law.

Kevin Yombor is Fort’s Labor, Employment and Business Litigation Partner. Office of Kaufman, Dolowich & Voluck, Lauderdale, Florida.

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