Interviewing
Illinois Consent Is the Easy Part of AI Video Interviews. BIPA Is Not.
You can use an AI video interview tool. What you owe candidates is two separate consents, and the second is the expensive one. Illinois requires notice before the interview, a plain explanation of how the AI works and what it evaluates, the applicant's consent, limits on who may view the video, and destruction within 30 days of a request. If the tool derives a faceprint or a voiceprint, the Illinois biometric statute applies as well, and candidates can sue under it directly.
The takeCompliance meetings about video interviewing spend an hour on the consent checkbox and five minutes on the vendor's feature list, which is backwards. The checkbox is a form. The feature list decides whether the pilot collected a biometric identifier from every candidate who took it, under a statute where the damages start at four figures per violation and the candidate brings the case. Get the biometric answer in writing, in the contract, before the pilot starts. A vendor who will not put that answer in the contract has already answered it.
Where Olive fits
Open a role and see what the work shows
An Olive session captures the work rather than the person: an occupational assignment done alongside an AI assistant, think-aloud spoken or typed, and screen capture confined to the assessment tab. What comes back is six written findings, each quoting the moment in the session it rests on.
Rank your shortlistWhat does the Illinois video interview act actually require?
Four things, all of them before the candidate records anything. An employer using AI to analyse recorded video interviews for an Illinois-based position must notify the applicant beforehand, explain how the AI works and what general types of characteristics it evaluates, obtain the applicant's consent, and refrain from evaluating any applicant who has not consented 1. On request, the video is destroyed within 30 days, and everyone who received a copy is instructed to delete their backups.
The statute has been in force since January 1, 2020, and most guidance still summarises it as the whole answer. It is not. Read what it does not do.
It names no penalty and creates no private right of action, so an applicant dropped after declining has no remedy under the Act itself 1. Explaining how the artificial intelligence works is undefined and in practice is satisfied by a general description. And the separate demographic reporting duty applies only to employers who rely solely on AI to decide who advances to an in-person interview, which almost nobody admits to doing 1.
That combination is why the consent form is cheap. It is also why treating the form as the compliance project leaves the actual exposure untouched, and why the async round deserves a harder question than a legal one: whether the one-way video screen is still worth keeping once every answer is read off a second screen.
Why is the biometric statute the expensive one?
Because candidates can enforce it themselves, and the damages are set in advance. The Illinois Biometric Information Privacy Act, in force since October 3, 2008, covers a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry, and it requires a public written retention-and-destruction policy and a written release before collection 2. A prevailing party may recover $1,000 in liquidated damages for a negligent violation, or $5,000 for a reckless or intentional one, plus fees and costs 2.
The mechanics are what make it different from every AI-specific statute. Those liquidated figures do not depend on proving a loss, since the text awards them or actual damages, whichever is greater 2. The retention policy must set a schedule for permanently destroying identifiers when the purpose has been satisfied or within 3 years of the person's last interaction, whichever comes first 2. And the written release has to come before collection, not with the offer letter.
One correction to the folklore. Public Act 103-769, effective August 2, 2024, limits recovery where the same violation occurs repeatedly between the same parties to a single recovery 2, so the per-scan arithmetic that circulated for years no longer produces the numbers people quote. The per-candidate exposure is still real, and a large applicant pool multiplies it by candidates rather than by scans.
Maryland runs a narrower version of the same idea. Since October 1, 2020 an employer may not use a facial recognition service to create a facial template during an applicant's interview unless the applicant signs a waiver stating, in plain language, their name, the date of the interview, that they consent, and whether they read it 3. It reaches templates only, not recording and not voice analysis, and it names no penalty, but it does mean a signed piece of paper has to exist per candidate.
Which regime applies? Find out whether a template gets built
That single fact decides everything downstream, and only the vendor knows it. Ask directly whether the product derives a biometric identifier, meaning a voiceprint or a scan of face geometry, at any stage including preprocessing, liveness checking, identity verification, or a subprocessor's step. Ask for the answer in writing and put it in the agreement. Expect a vague first answer, and keep asking until it is a yes or a no.
Four questions get you a usable answer:
- Does any component compute a faceprint or voiceprint, including for identity verification or fraud checks?
- Which subprocessors receive the video, and does any of them build a template?
- What exactly is retained after the evaluation: the video, a transcript, embeddings, or a derived vector?
- What is the deletion path, how long does it take, and does it reach backups and subprocessors?
If the answer to the first is yes anywhere in the chain, you are in the biometric regime and the consent form has to be a written release obtained before collection, with a published retention policy behind it. Counsel writes that release before a candidate sees it. If it is no, you are still in the video interview act, and in California you are also inside the FEHA employment regulations that took effect on October 1, 2025, which name analysing facial expression, word choice and voice in online interviews as an example of an automated-decision system 45.
Do not expect buying the tool to move the duty. Under those same California regulations an agent acting for an employer, including a vendor operating the system, is itself an employer 4. A vendor's assurance adds a second defendant rather than substituting for you.
Run these checks before the first candidate gets the link
Six of them, in this order, and none takes longer than an afternoon. The order matters because the first check can end the project, and discovering that after two hundred candidates have recorded is the expensive version of the same conversation. Which of these statutes reaches a given pipeline turns on where the position sits, so that question goes to counsel while the pilot is still on paper.
1. Get the biometric answer in writing and into the contract. 2. Write the consent as an informed written release if a template exists anywhere, and as a consent notice if it does not. 3. Publish the retention and destruction schedule, and execute it on time, whether or not anyone asks. 4. Name who may view a candidate's video, and log access, because the Illinois act limits distribution and you will be asked to prove it 1. 5. Build the deletion request path and staff it, since 30 days is short and the duty extends to instructing recipients to delete copies 1. 6. Offer an alternative route, and mean it.
That last one carries more weight than its position suggests. A candidate who cannot use an async video tool, or who declines the biometric consent, needs a real alternative, and disability accommodation duties apply to the assessment itself: see what ADA accommodations mean for an AI-based assessment.
Two adjacent problems land in the same week. The live panel call and its transcription sit under a different statute entirely, covered in consent rules for an AI notetaker on a live interview. And when an async recording and a live candidate seem to be two different people, that is a process question rather than a legal one: what to do when the final-round face does not match the take-home.
Common questions
Does the Illinois act apply if the candidate lives elsewhere?
It is written around the position rather than the person: it reaches an employer using AI to analyse recorded video interviews for positions based in Illinois. A fully remote role complicates that, and remote postings raise several state-law questions at once. The safe operating rule for a distributed pipeline is to run the Illinois process for everyone, because the cost is one form and the alternative is a jurisdiction analysis performed by a recruiter under time pressure.
Is a recorded video interview with no AI analysis covered?
Not by the Illinois video interview act, which is triggered by AI analysis rather than by recording. Plain recording still raises consent questions under state wiretap law, and the recording is still part of the hiring record once it informs a decision. So you leave one statute and land in another, and the obligation travels with you.
Does a résumé screener or a chat-based interview fall under the same rules?
No. The Illinois video interview act covers exactly one technology, AI analysis of applicant-submitted video interviews, and says nothing about resume screeners, chat interviews or take-home assignments. Those sit under general discrimination law, under state notice duties, and in California under the automated-decision-system regulations. Different statute, different trigger, and a compliance memo written for one does not cover the other.
What counts as explaining how the AI works?
The Illinois video interview act does not define it, and general descriptions are what the market has settled on: what the tool evaluates, what categories of characteristic it looks at, and what happens with the result. Undefined does not mean unlimited. An explanation the candidate could not use to decide whether to consent is unlikely to persuade anyone reading it back later, and it costs nothing to write a better one.
Can I reject a candidate who refuses to consent?
Under the Illinois act you may not evaluate an applicant who has not consented, which is not the same as being required to hire them. Maryland's statute similarly does not stop an employer declining to interview someone who will not sign the waiver. Treating refusal as a negative signal is a different risk: it converts a privacy choice into an evaluation input, and it is hard to explain later. Offer the alternative route instead.
Does a bias audit cover any of this?
No. A bias audit is a New York City duty under Local Law 144, and under the city's 2023 final rules it measures selection rates and impact ratios. It says nothing about consent, biometrics, retention or deletion. An employer can hold a clean posted audit and still be exposed on every point in this article. The two regimes overlap in the tools they touch and not at all in what they require.
References
- 1. Artificial Intelligence Video Interview Act, 820 ILCS 42 ilga.gov Supports the notice, explanation, consent, distribution-limit and 30-day destruction duties of 820 ILCS 42, and the absence of a penalty or private right of action.
- 2. Biometric Information Privacy Act, 740 ILCS 14, sections 10, 15 and 20 ilga.gov Supports the 740 ILCS 14 definition of a biometric identifier, the written retention-and-destruction policy and written release duties in section 15, the liquidated damages of $1,000 and $5,000 in section 20, and the single-recovery limit added by Public Act 103-769.
- 3. Chapter 446 (House Bill 1202), Labor and Employment - Use of Facial Recognition Services - Prohibition, Md. Code Lab. & Empl. section 3-717 mgaleg.maryland.gov Supports the Maryland waiver requirement for creating a facial template during an applicant interview and the four items the waiver must state.
- 4. Final Unmodified Text of Proposed Employment Regulations Regarding Automated-Decision Systems (Attachment B), 2 CCR sections 11008, 11008.1 calcivilrights.ca.gov Supports naming the analysis of facial expression, word choice and voice in online interviews as an automated-decision system, and the clause making a vendor acting as agent an employer under the Act.
- 5. Rulemaking Actions - Civil Rights Council ✓ calcivilrights.ca.gov The Council's own record of the automated-decision-system employment regulations: approved by OAL and filed with the Secretary of State, effective October 1, 2025.
5 sources, numbered by first appearance. How Olive sources claims
General guidance for hiring teams. What works at one company and one volume may not transfer to yours.
Olive assesses how a person works with AI. It does not detect AI-written documents, and it never produces a score, a ranking, or a match percentage for a person. Candidates read the same report the employer reads.