As more organizations use artificial intelligence and algorithms to drive decision-making processes, policymakers are beginning to address concerns about these tools — including their lack of transparency and potential for generating unintended bias and discrimination. In our inaugural artificial intelligence briefing, we provide a rundown of recent AI regulatory and legislative developments from across the U.S. that should be top of mind for any organization using AI or algorithms.
In recent years, Illinois has enacted a complement of laws designed to address historical pay inequities among genders, races and other protected categories. Those laws prohibit employers from requesting or relying on an applicant’s salary history when making hiring decisions and impose a standard for proving equal pay claims less rigorous than the federal standard. Last summer, we reported here of yet another Illinois equal pay development, when Illinois amended the Equal Pay Act of 2003, 820 ILCS 112/1, et seq. to require certain employers to obtain an equal pay registration certificate from the Illinois Department of Labor (IDOL) between March 24, 2022 and March 23, 2024, and every two years thereafter.
Employers who have more than 100 employees in the state of Illinois and are required to file an EEO-1 report with the EEOC are subject to this certification requirement. The window for obtaining the required certificate opens on March 24, 2022, and IDOL recently announced that it had begun sending notices to employers reminding them to register with IDOL.
Companies with Illinois employees have been bombarded with class action lawsuits under the Illinois Biometric Information Privacy Act (BIPA) over the last several years. These lawsuits generally allege that employers have not complied with BIPA’s notice and consent requirements before collecting or disclosing employees’ biometrics. One of the defenses has been that such claims are preempted under the Illinois Workers’ Compensation Act (IWCA) as workplace injuries, and thus cannot be brought in court. However, on February 3, 2022, in a long-awaited decision, the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, that preemption does not apply to BIPA claims raised by employees for damages, thereby allowing such claims to proceed in court.
Class action litigation under the Illinois Biometric Information Privacy Act (BIPA) has exploded over the last several years. An ongoing issue has been the proper forum for such cases, namely whether there is constitutional, Article III “standing” for BIPA claims to proceed in federal court. A May 5 ruling out of the Seventh Circuit Court of Appeals brought much-needed clarity to the issue by holding that a federal court could hear certain BIPA claims.
On December 4, 2019, Illinois Governor J.B. Pritzker signed into law amendments to the Illinois Cannabis Regulation and Tax Act (Illinois Cannabis Act) that clarify employer rights to enforce reasonable workplace drug policies once recreational marijuana use becomes legal in Illinois on January 1, 2020. As originally drafted, the Illinois Cannabis Act created confusion for employers as to whether they could lawfully test and/or discriminate against applicants who tested positive for cannabis, based on pre-employment and off-duty use of the drug.
On July 23, 2019, the Chicago City Council passed the controversial Chicago Fair Workweek Ordinance (the Ordinance). Once Chicago Mayor Lori Lightfoot, a vocal proponent of the Ordinance, signs it into law, the Ordinance is scheduled to take effect for the majority of covered employers on July 1, 2020.