California Use of Artificial Intelligence in Employment Decisions

California lawmakers have drafted new regulations aimed at the use of technology and artificial intelligence to screen job applicants and other employment decisions. While still in the draft stage, if lawmakers were to adopt these regulations into law they would be the first of their kind in the United States. The use of artificial intelligence and similar technology has advantages and drawbacks for workers that must be considered before using it in an employment setting. If you have questions about this or another employment law issue in your workplace, talk to an experienced California employment law attorney in your area today.

Using AI in Employment

Using artificial intelligence (AI) to perform routine tasks is not a new concept. This technology is routinely used to automate certain types of decision making or to process large sets of data. Already, nearly a quarter of employers are using some type of AI as part of their talent or recruiting process, which includes screening resumes, analyzing online tests, evaluating facial expressions of applicants during interviews, analyzing body language, and implementing gamified testing, to name a few. While AI has proven useful in many areas of employment, there are concerns about whether AI could result in biased or discriminatory decision making when it comes to certain employment decisions. As such, California and other states are considering an update to their labor and employment laws to address these issues in order to avoid violations of state and federal employment law.

California Draft Regulations

In March, the California Fair Employment and Housing Council published a draft of regulations to the state’s anti-discrimination laws for employment that would impose legal liability on employers who use AI in their employment decisions that result in a discriminatory impact. Under the draft regulations, it would be illegal for an employer to use automated decision software or other selection criteria in AI to screen applicants or employees on the basis of a protected characteristic. The only exception would be if the selection criteria used are shown to be job-related and consistent with a business necessity. These regulations would apply broadly to any “automated decision system” which could apply to any computer software or system, including more advanced AI, being used in employment decisions. This would apply to most areas of employment-related decisions, including hiring practices, pre-employment inquiries, applications, interviews, selection devices, and background checks.

Regulations in Other States

California is not the only state considering the passage of similar legislation regarding the use of AI in employment practices. In 2019, Illinois passed the Artificial Intelligence Video Interview Act, which requires employers to inform applicants when AI is used to analyze a video interview, explain to the applicant how the AI works and what criteria is being used, and to obtain consent from the applicant before using AI software. Maryland passed a similar law that prohibits the use of facial recognition software for the purposes of creating a facial template unless a waiver is signed.

Talk to a Lawyer

If you have concerns about the use of AI in a recent employment decision, a lawyer may be able to help. Call or contact an employment lawyer in your area today to learn more about your legal options.