Illinois AI Video Interview Act

Overview

The Illinois Artificial Intelligence Video Interview Act (AIVIRA), signed into law on August 9, 2019 and effective January 1, 2020, is the first US law specifically regulating the use of artificial intelligence in employment video interviews. The law was motivated by the rapid adoption of AI video screening tools — platforms that analyze candidates' facial expressions, word choices, tone, and physical characteristics to score "job fit."

AIVIRA establishes four core obligations for employers using such tools:

1. Notify applicants before using AI analysis
2. Explain how the AI works and what characteristics it evaluates
3. Obtain written or electronic consent before conducting AI analysis
4. Delete video recordings within 30 days of an applicant's request

The law applies to any employer — of any size, industry, or location — that interviews Illinois applicants via video and uses AI to analyze those videos.

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Who It Applies To

Employers

Any employer that:

• Requests video interviews from applicants, and
• Uses AI to analyze the content of those videos

The law does not require the employer to be based in Illinois. If the applicant is in Illinois at the time of the video interview, and AI is used to analyze the video, the employer must comply.

No Size or Industry Threshold

There is no revenue minimum, employee count requirement, or industry carve-out. A startup using a commercial AI interview analysis platform must comply just as a Fortune 500 employer must.

Staffing Agencies and Vendors

Third-party staffing agencies and HR technology vendors that analyze video interviews on behalf of employers are also subject to the Act's restrictions on video sharing and deletion.

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Core Requirements

1. Pre-Interview Notification

Before requesting a video interview that will be analyzed by AI, employers must notify the applicant:

• That artificial intelligence will be used to analyze the interview
• What the AI evaluates (e.g., facial expressions, word choice, tone of voice)
• How the AI analysis will be used in the hiring process

This notification must be provided before the interview — not after — and must be specific enough for the applicant to make an informed decision about participating.

2. Explanation of AI Characteristics

The notification must include an explanation of which characteristics the AI evaluates. For example:

• Verbal content and keyword analysis
• Vocal tone and pacing
• Facial expression patterns and micro-expressions
• Body language and posture

Employers should work with their AI vendors to obtain accurate descriptions of these characteristics for disclosure purposes.

3. Written or Electronic Consent

Employers must obtain the applicant's explicit consent before conducting the AI analysis. Passive consent (e.g., simply proceeding with the video interview after a vague disclosure) is insufficient. Acceptable consent mechanisms include:

• A checkbox in an online application or video interview platform
• A separate consent form (digital signature acceptable)
• An email confirmation from the applicant acknowledging the disclosure

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Consent Obligations

Form of Consent

Consent must be:

• Written or electronic — verbal consent alone is not sufficient
• Prior to the interview — obtained before, not during or after the video analysis occurs
• Informed — based on the notification described above

Withdrawal of Consent

The law does not explicitly address consent withdrawal, but employers relying on the consent should implement a clear process for applicants who wish to withdraw consent and should document when consent was obtained.

If an Applicant Withholds Consent

The Act does not prohibit employers from declining to interview applicants who refuse to consent to AI analysis. However, employers should consider whether such a policy could create disparate impact liability under other employment discrimination laws.

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Restrictions on Sharing

Employers may not share video recordings with third parties except in two narrow circumstances:

1. Persons with necessary expertise: Individuals whose expertise is needed to evaluate job fitness — such as a technical interviewer or department manager — may view the recording. These persons must be directly involved in the hiring decision.

2. Technology vendors providing storage or processing: Service providers who need access to host, process, or transmit the recordings may access them — but only under a binding contractual agreement prohibiting the vendor from disclosing the video to any other party.

What Is Prohibited

• Sharing video recordings with other employers or affiliates
• Providing videos to AI research teams for model training without the applicant's separate consent
• Making videos accessible to any person not directly involved in the specific hiring decision

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Data Deletion Rights

On-Request Deletion — 30-Day Deadline

If an applicant requests deletion of their video interview recording, the employer must destroy all copies of the video within 30 days of that request. This includes copies held by third-party technology vendors — the employer must ensure its vendor contracts include a deletion-on-request obligation.

Destruction After Hiring Process

Even without a request, employers must destroy all video recordings within a reasonable time after the completion of the hiring process for the position in question. The Act does not define "reasonable time," but industry practice suggests 6–12 months following a final hiring decision.

Scope of Deletion

The deletion obligation covers:

• The original video recording
• Any backup copies
• Any processed or extracted features stored by AI analysis vendors
• Transcripts generated solely from the video (if stored separately)

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Penalties & Enforcement

Unlike most AI regulations (which vest enforcement in a government agency only), the Illinois AI Video Interview Act provides a private right of action — applicants can sue employers directly.

Available Remedies

| Remedy | Details | |--------|---------| | Injunctive relief | Court can order employer to stop non-compliant practices | | Actual damages | Compensation for provable harm caused by violation | | Attorneys' fees | Prevailing plaintiff can recover legal costs |

Statute of Limitations

Illinois courts have generally applied a 5-year statute of limitations for statutory violations like AIVIRA, though this has not been definitively resolved through case law.

No Government Enforcement Agency

There is no dedicated agency with authority to investigate AIVIRA complaints or assess administrative penalties. Enforcement is entirely through private litigation.

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Compliance Steps

1. Audit your video interview tools. Determine which platforms your company uses for video interviews and whether any of them use AI analysis (automated scoring, facial expression analysis, voice analysis, etc.).

2. Contact vendors for AI feature disclosure. Request documentation from your video interview vendors describing exactly what characteristics their AI evaluates. This is necessary for the required applicant disclosure.

3. Update your consent workflow. Before any video interview where AI analysis is used, implement a consent step that:

   • Notifies the applicant that AI will be used
   • Explains what the AI evaluates
   • Collects written or electronic consent

4. Review data sharing contracts. Audit agreements with your video interview vendors to ensure they include binding restrictions on sharing recordings with third parties and deletion obligations upon your request.

5. Implement a deletion request process. Create a documented process for responding to applicant deletion requests within 30 days, including a mechanism to pass deletion requests to vendors.

6. Set retention policies. Define a maximum retention period for video recordings (tied to completion of the relevant hiring process) and configure your vendor platform to auto-delete within that window.

7. Train recruiters and hiring managers. Ensure anyone involved in video interviews understands AIVIRA's requirements, particularly the prohibition on sharing recordings beyond those directly involved in the decision.

8. Document consent records. Retain records of when consent was obtained from each applicant, in case of later dispute.

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Frequently Asked Questions

Does AIVIRA apply to remote interviews? Yes. The law applies when the applicant is located in Illinois, regardless of the interview format or the employer's location.

What consent is required? Written or electronic consent, obtained after providing notice of what AI will analyze and how it will be used in the decision. Passive acceptance is not enough.

Can employers share videos with hiring managers? Yes — sharing with persons whose expertise is necessary to evaluate job fitness is permitted. But they must be directly involved in the hiring decision.

How fast must employers delete videos on request? Within 30 days of the applicant's deletion request, including copies held by vendors.

Is there a government agency that enforces AIVIRA? No. Enforcement is through private lawsuits only. Applicants can sue for injunctive relief, actual damages, and attorneys' fees.

Does it cover asynchronous video interviews? Yes. "One-way" or asynchronous video interviews (where candidates record answers to pre-set questions, which are later reviewed) are covered if AI is used to analyze the recording.

Do employers have to reveal which AI vendor they use? The Act does not explicitly require naming the vendor, but the disclosure of "how AI works and what it evaluates" typically requires describing the vendor's methodology in enough detail to be meaningful.