Workforce Bulletin

A recent decision from the Northern District of Illinois highlights new legal hurdles for employers using AI-powered video interview technologies under Illinois’ Biometric Information Privacy Act (BIPA), 740 ILCS 14/15. 

In Deyerler v. HireVue, initially filed over two years ago in January 2022, a class of plaintiffs alleged that HireVue’s AI-powered facial expression and screening technology violated BIPA.  According to the complaint, HireVue collected, used, disclosed, and profited from “biometric identifiers” without complying with the requirements of BIPA.  In a published decision, issued February 26, 2024, the court largely denied HireVue’s motion to dismiss, allowing most claims to proceed, and addressed several legal questions relevant to AI hiring tools and the use of video interviewing software. 

In its decision, the court first considered HireVue’s argument that the court lacked personal jurisdiction because HireVue has no meaningful corporate presence in Illinois and the applicable software was not developed in Illinois.  The court rejected that argument and found that plaintiffs sufficiently pleaded personal jurisdiction by alleging that HireVue marketed and sold its software to at least one company headquartered in Illinois, and the HireVue software was used to capture at least one of the plaintiff’s biometric identifiers.

In a flurry of activity into the wee hours of June 2, 2021, Illinois legislators concluded a spring session that saw the passage of numerous measures that will affect employers in the state across the span of the employment relationship. Among the most significant of the many bills heading to Governor Pritzker for signature are acts amending the Artificial Intelligence Video Interview Act, the Equal Pay Act, the Victims’ Economic Security and Safety Act (“VESSA”), and the Freedom to Work Act. It is expected that Governor Pritzker will sign all of the above-mentioned bills.