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Artificial Intelligence in Recruiting and Hiring
By: Amanda Thibodeau
Tommorowland Today: The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere
Artificial Intelligence, or AI, is no longer just a sci-fi movie device. This branch of computer science has grown to become an essential part of the technology industry. You may recognize your own use of AI in products such as Apple’s Siri, Amazon Echo, or Netflix, which all use learning and predictive technology to get smarter and learn your likes, dislikes, interests, and behavior.
AI has recently stepped into the recruiting and hiring world, with new platforms available to employers to collect, store, and use data to screen a candidate’s facial expressions and gestures, analyze their voice, speech patterns, and knowledge on a particular subject, and evaluate a candidate’s personality and predict their fit for a role. As with other AI technology, the more candidates the AI platform interviews, the smarter it gets in its analyses.
Illinois is the first state to respond to the rise of such use of these AI platforms. In May 2019 Illinois passed the Artificial Intelligence Video Act (“the Act”), which goes into effect January 1, 2020. Under the Act, an employer wishing to use an AI platform to analyze a candidate’s interview must comply with several requirements:
- Employer must notify the candidate that their interview will be videotaped and may be analyzed using AI;
- Employer must obtain consent to analyze the video using AI;
- Employer must provide information to the candidate on how the AI platform works and what it uses to evaluate candidates.
The Act applies to all candidates applying for an Illinois-based position, regardless of where the candidate is actually located. The Act also prohibits employers from sharing the candidate’s video, “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.” The candidate may also request that the video be destroyed within 30 days of a request. This request also requires any recipient of the video to also destroy the video, including any electronically generated backup copies.
The Act itself is fairly short and does not contain any definitions or much guidance on interpretation. Illinois is the first state to respond legislatively to this new use of AI in the employment context, and is therefore charting the course for now. As the use of AI continues to grow in all industries, it is likely that other states may be playing catch-up sooner rather than later, and will likely use Illinois’ new Act as a model.
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
IEP Meetings Covered Under FMLA
By: Amanda Thibodeau
DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA
Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA). Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member. A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.
The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings. The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.
In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors. The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion. The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.
The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b). In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions. Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.
Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA. Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
Massachusetts Employment Law Blog 