Illinois AI Video Interview Act (AIVIA) and HB 3773

Illinois regulates AI in hiring through two separate laws that stack on top of each other. The Artificial Intelligence Video Interview Act (AIVIA, 820 ILCS 42), effective January 1, 2020, governs one narrow act: using AI to analyze a video interview for a position based in Illinois. It requires advance notice, a plain-language explanation of how the AI works and what characteristics it evaluates, and the applicant’s consent before the interview. It also caps who may see the video, forces deletion within 30 days of an applicant’s request, and — since a January 1, 2022 amendment — makes employers who rely solely on AI video analysis to decide who gets an in-person interview report applicant race and ethnicity to the state annually. Separately, HB 3773 amended the Illinois Human Rights Act effective January 1, 2026 and reaches every AI system used in a covered employment decision, video or not: it bans AI whose use has a discriminatory effect on a protected class, bans zip code as a proxy for a protected class, and requires notice whenever AI is used.

What AIVIA is not: it is not a bias-audit law. Unlike NYC Local Law 144, AIVIA requires no independent audit, no impact-ratio calculation, and no public posting of results. It is not a ban on AI interviewing, and it does not regulate AI that scores resumes, ranks candidates, or schedules interviews — only AI analysis of video interviews. And it is not the law that carries Illinois’ real enforcement teeth; that is HB 3773 and the Human Rights Act machinery behind it.

Which law applies to which tool

The line under HB 3773 is whether the system is used to “influence or facilitate” a covered employment decision — recruitment, hiring, promotion, renewal, selection for training or apprenticeship, discharge, discipline, tenure, or the terms and conditions of employment. Transcription that no one scores against is outside it; a summary that a hiring manager reads and relies on is a harder call. Consult counsel where the vendor’s documentation does not make the output’s role clear.

What AIVIA requires

Before the interview, an employer using AI to analyze video interviews of applicants for Illinois-based positions must do three things:

1. Notify the applicant that AI may be used to analyze the video and evaluate their fitness for the position.
2. Provide information explaining how the AI works and what general characteristics it uses to evaluate applicants.
3. Obtain the applicant’s consent. Without consent, the employer may not run the AI analysis.

Sharing is capped. The video may only go to people whose expertise or technology is necessary to evaluate the applicant’s fitness for the position. That covers the AI vendor; it does not cover circulating a recording to a wider hiring committee for convenience.

Deletion is on demand. Within 30 days of an applicant’s request, the employer must delete the interviews and instruct everyone who received a copy to delete theirs, including all electronically generated backup copies. This is the requirement most likely to break in practice, because it reaches your vendor’s storage and your own backups, not just the ATS record.

Demographic reporting applies only to sole reliance. Under Section 20, an employer that relies solely on AI analysis of a video interview to decide whether an applicant advances to an in-person interview must collect the race and ethnicity of applicants who were and were not afforded an in-person interview, and of applicants who were hired. The report goes to the Illinois Department of Commerce and Economic Opportunity annually by December 31, covering the 12-month period ending November 30. DCEO then reports to the Governor and General Assembly by July 1 each year on whether the data discloses racial bias.

The practical effect of “solely” is that most employers escape the reporting duty by keeping a human in the advance/reject decision. That is a real compliance design choice, not a loophole to paper over: if a recruiter rubber-stamps the AI’s shortlist without independent review, the “human in the loop” is doing no work, and the reliance argument is weak.

AIVIA’s enforcement gap

AIVIA names no enforcement agency, sets no penalty schedule, and creates no express private right of action. That has kept direct AIVIA litigation nearly nonexistent — and it is the reason treating AIVIA as your Illinois compliance ceiling is a mistake. The exposure from an AI video interview runs through other statutes:

• BIPA (740 ILCS 14). If the tool extracts face geometry or a voiceprint, Illinois’ biometric law imposes its own written-notice, written-consent, and retention-schedule duties, with statutory damages per violation and a private right of action. Deyerler v. HireVue pressed exactly this theory against an AI video-interview vendor; the plaintiffs voluntarily dismissed in January 2026 in the Northern District of Illinois, so the case produced no merits ruling and no safe harbor. Assume the theory survives.
• The Human Rights Act, as amended by HB 3773. Discriminatory effect is actionable regardless of whether you satisfied AIVIA’s notice and consent steps.

What HB 3773 requires

Effective January 1, 2026, HB 3773 makes it a civil rights violation to use AI that has the effect of subjecting employees or applicants to discrimination on the basis of a protected class in a covered employment decision, and to use zip code as a proxy for a protected class. The prohibition is effect-based — no discriminatory intent is required.

It also imposes a standalone notice duty. Notice is owed whenever AI is used to influence or facilitate a covered decision, whether or not the use turns out to be discriminatory. The statute requires notice; the specifics were left to Illinois Department of Human Rights rulemaking.

The rulemaking is postponed, the statute is not

IDHR published proposed amendments to Title 44, Part 2520 of the Illinois Administrative Code on May 15, 2026, with written comments due June 29, 2026 and a public hearing set for June 10, 2026. On June 2, 2026, IDHR postponed the rulemaking, including the hearing, saying it needed to continue collaborating with other state agencies. No revised timeline has been published. The statutory obligations have been in force since January 1, 2026 either way — there is no grace period pending final rules.

The proposed text remains the best available signal of what IDHR expects, and it is what a defensible program should be built against today:

• Timing. Notice to applicants in the job posting; notice to current employees annually, plus within 30 days of adopting a new or substantially updated AI system.
• Content. The AI developer, vendor, and product name; which employment decisions the system influences; its purpose and the categories of personal data it processes; the positions affected; a contact point for questions; and how to request a reasonable accommodation.
• Form. Plain language, available in the languages commonly spoken by the workforce, and accessible to employees with disabilities.
• Delivery. Job postings, employee handbooks, worksite postings, and the employer intranet or website.
• Records. The proposal extends employment record retention from one year to three and adds preservation of AI-related notices and disclosures.

How HB 3773 is enforced

HB 3773 creates no new standalone private right of action. It runs through the Human Rights Act’s existing machinery: a charge with IDHR, then proceedings before the Illinois Human Rights Commission or, at the complainant’s election, in circuit court. Two features matter for exposure modeling. The filing window is two years from the incident, not the old 300 days — Public Act 103-0973 extended it effective January 1, 2025. And remedies include back pay, lost benefits, emotional-distress damages, reinstatement or front pay, and attorney’s fees and costs; the Human Rights Act does not permit punitive damages.

Does the federal executive order change this?

No. A December 11, 2025 executive order directed the Department of Justice to challenge state AI laws, naming HB 3773 among them. An executive order does not preempt state law on its own — preemption ordinarily requires an act of Congress — and no court has enjoined HB 3773. Litigation over the order and the statute may follow. Until a court says otherwise, the January 1, 2026 obligations bind.

Compliance steps for Illinois hiring

1. Inventory by decision, not by vendor. For every tool touching an Illinois req, write down which covered decision it influences and what output it produces. This list is the input to both laws and to your notice content.
2. Split the AIVIA subset. Flag anything that analyzes video. Those tools need the notice-explanation-consent sequence before the interview, plus a deletion path.
3. Test the deletion path end to end. Submit a deletion request against your own test candidate and confirm the record is gone from the ATS, the vendor, and backups inside 30 days. Get the vendor’s deletion SLA in the contract.
4. Decide the sole-reliance question deliberately. If a human genuinely reviews advance/reject decisions, document how. If not, stand up the Section 20 collection now — the December 31 deadline covers the year ending November 30.
5. Ship the HB 3773 notice. Add it to Illinois job postings and to the handbook or intranet, with the developer/vendor/product detail the proposed rules call for. Calendar the annual re-issue and a 30-day trigger on new tool adoption.
6. Ask vendors for BIPA answers in writing. Specifically: does the product extract face geometry or voiceprints, and what is the retention and destruction schedule? A “no biometrics” claim belongs in the contract, not a sales call.
7. Retain for three years. Notices, postings, consents, and the tool inventory.

Common pitfalls

Treating AIVIA compliance as Illinois compliance. AIVIA covers video analysis only and carries no penalty schedule. Guard: run the HB 3773 notice and non-discrimination analysis across every AI tool in the funnel, then treat AIVIA as an add-on for the video subset.

Consent buried in the application flow. A checkbox inside general terms of service is not the AIVIA explanation-plus-consent sequence, and it will not survive a BIPA written-consent argument either. Guard: a standalone, named disclosure screen before the video interview, with the how-it-works explanation on the same screen, and a stored consent record tied to the applicant.

Assuming the postponed IDHR rules mean a postponed obligation. The statute took effect January 1, 2026 independent of the rulemaking. Guard: build to the proposed notice content now; if the final rules differ, you are editing a live notice rather than starting one.

A human reviewer who never disagrees. Sole reliance is a functional test, not a headcount test. Guard: sample your AI-advanced and AI-rejected candidates monthly, log the override rate, and treat a near-zero override rate as evidence that Section 20 reporting applies.

Forgetting vendor backups on deletion. The 30-day duty explicitly reaches copies held by others, including electronic backups. Guard: a contractual deletion SLA shorter than 30 days, plus written confirmation from the vendor per request.

Reading “no discriminatory intent” as “no exposure.” HB 3773 is effect-based, and a vendor’s model card is not a defense. Guard: run your own disparate-impact analysis on selection rates by protected class, the same calculation LL144 requires, even though Illinois does not mandate it.

Related

• NYC Local Law 144 — the audit-and-disclose model Illinois deliberately did not adopt
• Colorado AI Act (SB 205) — the broader high-risk-system regime, now effective January 2027
• AI policy for recruiting teams — the internal governance document these obligations belong in
• AI screening bias — how to run the disparate-impact analysis HB 3773 makes relevant
• HireVue — the video interview platform most directly in AIVIA’s scope