Workforce Bulletin

On September 24, 2024, the U.S. Department of Labor (“DOL”), collaborating with the Partnership on Employment & Accessible Technology (“PEAT”), a non-governmental organization the DOL funds and supports, announced the publication of the “AI & Inclusive Hiring Framework,” (“the DOL’s Framework”). The DOL’s Framework, created in response to the Biden-Harris Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, helps employers create and maintain non-discriminatory artificial intelligence (“AI”) hiring procedures for job seekers with disabilities. (For more information on the Biden-Harris Executive Order, see our Workforce Bulletin.)

Establishing these procedures has become a top priority for employers as nearly 1 in 4 organizations have implemented AI tools in human resource departments, according to new research from SHRM.

AI-powered recruitment and selection tools can streamline the hiring process by identifying potential candidates or screening applicant resumes, but employers must ensure their AI hiring tools do not intentionally or unintentionally perpetuate discriminatory practices or create barriers for job seekers with disabilities. Employers may rely on the DOL’s Framework as a useful starting point when implementing AI hiring tools.  Employers that have already implemented such tools should review the DOL’s Framework to ensure their practices do not create unwanted liability.

On August 9, 2024, Illinois Governor J.B. Pritzker signed HB 3773 into law, amending the Illinois Human Rights Act (IHRA) to expressly regulate the use of artificial intelligence (AI) for employment decisions. HB 3773 is the second Illinois law that regulates workplace AI.  As we previously reported, in August 2019, Illinois enacted the first of its kind statute, the Artificial Intelligence Video Interview Act (AIVIA), which requires employers who use AI-enabled video interviewing technology to provide applicants advanced notice of the use of the AI, information regarding how the AI works and the characteristics evaluated, and obtain prior consent from applicants. And, while not necessarily directed exclusively at workplace AI tools, as we also previously reported, an employer’s use of AI-powered facial expression and screening technology could also implicate the requirements of the Illinois Biometric Information Privacy Act (BIPA).  

HB 3773 has a potentially broader application than either AIVIA or BIPA.  HB 3773 provides two new definitions:

Artificial Intelligence                      

A machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

Artificial intelligence also includes generative artificial intelligence.

Generative Artificial Intelligence   

An automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following:

Since the dawn of digitalization, the collection and retention of personal and other business confidential data by employers has implicated security and privacy challenges—by amassing a treasure trove of data for bad actors (or unwitting/unauthorized employees) and drawing a roadmap for those seeking to breach the system. Adding artificial intelligence (AI) into the mix creates further areas of concern. A recent survey undertaken by the Society of Human Resource Management of more than 2000 human resources professionals indicates that AI is being utilized by the majority of ...

As we recently reported, on December 9, 2022, the New York City Department of Consumer and Worker Production (“DCWP”) announced that it was postponing enforcement of the Automated Employment Decision Tools (“AEDT”) law, until April 15, 2023, due to the high volume of public comments it received regarding its proposed rules.

On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.