As previously discussed here, the use of artificial intelligence in the workplace has drawn scrutiny from regulatory bodies and activist groups who have expressed concern that such technology may not neutrally screen applicants without regard to protected characteristics.

To address these concerns, the New York City Council introduced a bill (Int. 1894-2020) on February 27, 2020, which would regulate the sale of “automated employment decision tool[s]” that filter candidates “for hire or for any term, condition or privilege of employment in a way that establishes a preferred candidate or candidates.”

Specifically, the bill aims to require: (1) technology companies to conduct annual bias audits before selling such tools in NYC; and (2) companies who use such tools to notify each candidate within thirty (30) days of screening of the specific tool used to evaluate them, as well as the qualifications or characteristics considered by the algorithm.

If passed, the bill would take effect on January 1, 2022, and require proprietors of automated employment decision-making software to provide the purchaser the results of the annual bias audit and a notice indicating that the tool is subject to the provisions of the law.

Notably, the bill expressly reserves the NYC Commission on Human Rights’ ability to enforce the NYC Human Rights Law as it relates to the use of this software, which underscores the potential legal risks associated with doing so (including but not limited to memorializing the results in an annual bias audit).

The NYC bill is just one example of recent efforts undertaken by state and local governments and agencies to regulate AI due to bias concerns. For example, on January 1, 2020, the Illinois’ Artificial Intelligence Video Act took effect which regulates employers’ use of algorithms to analyze video interviews. More recently, the Equal Employment Opportunity Commission announced its investigation of two (2) cases involving alleged algorithmic bias in recruitment.

To mitigate against the potential risks presented by this rapidly-evolving legal landscape, employers who are considering whether (and how) to use machine-learning software in the workplace should heed caution and consult counsel before doing so.

Photo of Joseph O’Keefe Joseph O’Keefe

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all…

Joseph C. O’Keefe is a partner in the Labor & Employment Law Department and Co-Head of the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Joe is an experienced trial lawyer who, for more than 30 years, has litigated employment disputes of all types on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies throughout the U.S. Joe has litigated employment-related lawsuits alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblowing, wage and hour violations, Title IX violations, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients in complex class and collective litigation, including alleged violation of state and federal pay equity laws, violations of wage and hour laws and discrimination claims. Joe’s experience includes appellate work in both federal and state courts.

In addition to his extensive litigation practice, Joe regularly advises employers, writes and speaks on a wide range of employment related issues. He counsels clients concerning pay equity, use of Artificial Intelligence in the workplace, management of personnel problems, ADA/FMLA compliance, reductions in force, investigation of employee complaints, state and federal leave laws, wage and hour issues, employment policies and contracts.

Joe represents employers in a variety of industries including financial services, higher education (colleges and universities), pharmaceuticals/medical devices, health care, technology, communications, fashion, consumer products, publishing, media and real estate. He frequently writes articles concerning developments in the law and speaks at seminars concerning legal developments in the labor and employment law field.

Photo of Tony S. Martinez Tony S. Martinez

Tony Seda Martinez is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation practice groups.

Tony advises clients on a range of labor and employment matters. As part of his employment law practice…

Tony Seda Martinez is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations and Employment Litigation practice groups.

Tony advises clients on a range of labor and employment matters. As part of his employment law practice, Tony has represented clients in lawsuits alleging breach of contract, discrimination, harassment, and retaliation before federal and state courts and administrative agencies. He also assists employers with complex investigations matters and provides day-to-day counseling on employment law matters. Tony focuses his labor practice on representing public and private employers in grievance arbitrations and collective bargaining negotiations. He counsels clients across a number of industries including financial services, health care, sports leagues, transportation, and media.

Tony earned his J.D. from Rutgers Law School in 2018 where he was a member of the Rutgers Law Review. From 2022 to 2023, Tony served as a judicial law clerk to the Honorable José R. Almonte in the District of New Jersey.