Recently emerging artificial intelligence (AI) technologies may have a solution to streamline certain employment practices and processes for hiring applicants in various industries. Historically, both federal courts and regulatory enforcement agencies have opposed the overall use of AI tools, after being scrutinized under local, state and federal anti-discrimination laws.
In a welcome piece of news for New York-based employers, the New York City Department of Consumer and Worker Protection recently published a set of proposed rules that could significantly reshape the employment process and existing employment legislation. still waiting for approval. For city employers who make heavy use of automated employment decision-making tools (AEDT) for hiring, these proposed rules will provide some initial guidance on the laws surrounding artificial intelligence, in anticipation of the ambiguous AI law that has ‘the city enacted back in 2021 to clarify.
The law, which will not take full effect until January 1, 2023, prohibits employers from using any form of AEDT unless an independently sourced auditor completes a bias audit and the notification requirements are fully met. The proposed rules define an independent auditor as “any person or group not involved in the use or development of an AEDT,” but also clarify that an employer can use a vendor-commissioned bias audit to meet the requirements of the AI law . In addition, the law will restrict employers from using AEDT in promotion decisions and will inform future applicants and current employees of the tools’ use on all future job listings.
Simone Francis, an attorney at technology-based firm Ogletree Deakins, noted that the prevalence of AI hiring tools within the job market is increasing. “There has certainly been a lot of conversation about the ability of AI to eliminate biases, but the law intends to put certain processes in place to ensure that AI is being used in a way that does not lead to unintended outcomes, including results that would be contrary to existing anti-discrimination laws. New York City law specifically states that you must conduct an independent inspection, which means that you cannot rely on the seller’s and seller’s assurances. We’re still trying to develop some sense of what the city means by that,” Francis said, as reported by Executive HR.
However, the proposed rules do not expressly address other major compliance issues that may affect city employers, including the precise requirements for an employee opting out of AEDT. In addition, employers are still unsure whether bias audits will need to be updated annually according to the AI law or whether a single audit before using the tools will suffice. Francis continued, “It’s important to understand how AI tools are used. Employers need to address that because how they are actually used could prompt the implementation of this law in New York City or other jurisdictions in the future.”