As AI-powered hiring tools become more widespread, it is important to remember that some states have acted early and their laws should be reflected in an organization’s governance, risk, and compliance program. Maryland’s Labor and Employment Code Section 3-717 which became effective October 1, 2020, is one example. We break down the key requirements and highlight multistate considerations.

Q: Who does the law apply to?

The law applies to employers who use facial recognition services during applicant interviews. Its protections run to applicants, generally individuals who are interviewing for employment. The law does not, by its terms, extend to current employees or to other stages of the employment relationship beyond the interview. It is unclear, however, whether the law may also protect employees of an organization applying for other positions at the same organization.

Q: What does Maryland Section 3-717 actually prohibit?

The statute prohibits an employer from using a “facial recognition service” to create a “facial template” during a job applicant’s interview, unless the applicant has first provided consent. A “facial recognition service” is defined as technology that analyzes facial features and is used for the recognition or persistent tracking of individuals in still or video images, and a “facial template” is the machine-interpretable pattern of facial features extracted from one or more images of an individual by such a service.

Q: Does Section 3-717 apply to all uses of AI in hiring?

No. The Maryland statute is narrowly focused on facial recognition services used to create facial templates during interviews. It does not broadly regulate other AI-based tools an employer might use in the hiring process, such as resume-screening algorithms or chatbot-based assessments, unless those tools incorporate facial recognition technology as defined in the statute.

Q: How does the Maryland law differ from the Illinois Artificial Intelligence Video Interview Act (AIVIA)?

Although both laws regulate the use of technology during applicant interviews, there are several notable differences:

  • Scope of technology covered. Maryland’s Section 3-717 targets only “facial recognition services” used to create a facial template. The Illinois AIVIA, which became effective January 1, 2020, is broader: it applies whenever an employer asks applicants to record video interviews and uses “artificial intelligence analysis” of those videos, which can encompass a wider range of AI evaluations beyond facial recognition alone.
  • Disclosure and transparency. The Illinois AIVIA requires employers to (a) notify the applicant before the interview that AI may be used to analyze the video and assess their fitness for the position, and (b) provide an explanation of how the AI works and what general types of characteristics it evaluates. Maryland’s statute has no comparable pre-interview disclosure or transparency requirement — it requires only a signed consent waiver.
  • Video sharing and deletion. The Illinois AIVIA includes additional protections that have no counterpart in the Maryland statute. Under the Illinois law, employers may not share applicant videos except with persons whose expertise or technology is necessary to evaluate the applicant, and employers must delete interview videos (including backup copies) within 30 days of an applicant’s request. Maryland’s Section 3-717 does not address video sharing or data deletion.

Q: What should multi-state employers take away from these laws?

An ongoing challenge for organizations operating in multiple states is the patchwork of similar laws addressing similar technologies, but sometimes with a different scope or context, along with some unique provisions.

Here, we focused on two laws that address the interview process for job applicants. One might ask whether there are other statutes that regulate the interview process in this way. Focusing only on regulation of job interviews might cause one to miss other critical compliance requirements.

The Maryland and Illinois laws discussed above may involve the collection of biometric information that, for example, also is protected under more general laws, such as the California Consumer Privacy Act (CCPA), the Illinois Biometric Information Privacy Act (BIPA), and other states with protections for such information (e.g., Colorado and Texas).

Additionally, neither the Maryland nor Illinois job interview laws includes obligations to safeguard the facial scan data collected during covered interviews. However, other state laws may include such a requirement. Maryland’s own Personal Information Protection Act (PIPA) requires:

a business that owns, maintains, or licenses personal information of an individual residing in the State [to] implement and maintain reasonable security procedures and practices that are appropriate to the nature of the personal information owned, maintained, or licensed and the nature and size of the business and its operations.

Under the PIPA, personal information includes biometric information.

It is not enough to think about just the activity the organization is engaged in – a job interview – employers need to consider a range of other issues to fully appreciate the regulatory environment for that activity – the kind of data collected, the location of the collection, who is collecting it, the state of residency of the person providing the information, how that data is collected and analyzed, among other things.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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