Applicants and Artificial Intelligence
Employers are limited in how they can use artificial intelligence (AI) to screen applicants, but there are currently no regulations on how applicants can use AI to enhance their candidacy. Under existing rules, however, employers CAN limit applicants’ use of AI to cases where it is used as a “reasonable accommodation” for a genuine inability to complete the application process otherwise. There is bound to be further action in this area, but employers are cautioned to stay within legal bounds as they currently exist. How can employers handle this?
An abbreviated list of information provided ty the National Law Review, includes the following:
Ensure there are nondiscriminatory business reasons for prohibiting or restricting the use of AI at various stages of the application process, as noted above. For example, interview preparation might be acceptable, while using AI to draft resumes cover letters, or writing samples, or to answer online interview questions might be problematic.
Include a notice about your AI rules and a link to those rules in your job postings.
Alternatively, include such postings specifically tailored to particular jobs if certain AI-related rules apply only to those positions.
Depending on your AI rules, require candidates to attest that they have not used AI in any part of the application process or require them to disclose their use of AI.
Include in your notices and rules information about seeking a reasonable accommodation in the application process, including using AI.
Train job recruiters, HR personnel, and interviewing staff to detect potential job application materials that have used AI, potentially including the following:
AI “tells” in written materials include things like: (1) use of repeated words or phrases; (2) a lack of personalization, including failing to include details about skills and experiences or failing to address the specific job for which the applicant is applying and parroting back language from the job posting without elaboration or context; (3) formatting inconsistencies; (4) different tones and writing styles within a single document and across documents; (5) overly complex or verbose language; and (6) similarities between multiple applicants’ written materials.
Indicators that an applicant is using AI during remote interviews in real-time, such as things like: (1) pausing too long after the question is asked; (2) looking off camera before answering; and/or (3) providing answers that sound scripted.
In addition, as candidates progress through the hiring process, job recruiters, HR personnel, and interviewing staff should be on the lookout for inconsistencies in what candidates said about their experience and skills in written materials or video interviews and what they or their references say later in the hiring process.
Include an in-person, nondigital interactive step during the job-application process (e.g., in-person interview without electronics) and be diligent with checking references to better assess an applicant’s skills and experience (e.g., by comparing what skills and experience is conveyed during the in-person interview or by references and with what was conveyed in the applicant’s written materials or during remote interviews).
“Employers should be mindful that job applicant use of AI is likely to increase over time. Additionally, it may become more difficult for employers to accurately track job applicant use of AI as AI improves and there are fewer noticeable AI “tells” or “hallucinations” in job-applicant materials. As employers attempt to navigate this evolving landscape, they must proceed cautiously when imposing restrictions on job applicant use of AI to ensure they remain in compliance with existing federal, state, and local employment and labor-law obligations.