[Draft 2] - Automated Employment Decisions

[Simone]

Noting that many employers use artificial intelligence tools (AIT) to assist in hiring decisions;

Fearing that such processes lead to discrimination on various grounds, such as deficiencies of AIT software, or for candidates to game the system by presenting credentials that are tailored to such tools;

The WA hereby enacts as follows:

1. Definitions.
   1. "AIT" includes artificial intelligence, machine learning, and other analogous tools used (as defined in clause 2) by employers in the hiring process.
   2. "Authority" means one or more entities tasked with enforcement and interpretation of this resolution by a WA state.
   3. "Employer", for this resolution, means anyone making an "employment decision".
   4. "Employment decision" means decisions regarding hiring an individual for a position, or to considering promoting an individual to a different or a more senior position, regardless of whether such positions are paid or unpaid or the means of compensation.
2. Scope of AIT. The use of AIT in a hiring process (“use”) includes partly or fully automating processes such as:
   1. screening employees for skills and qualifications;
   2. predicting adaptation of the potential employee to an employer’s culture;
   3. predicting the competence of the potential employee based on such criteria as determined by the AIT utilized; and
   4. using AIT to analyse the behaviour of the potential employee during interviews.
3. Disclosures.
   1. An employer that “uses” AIT (defined in clause 2) must disclose the type and version of software used as part of the hiring process to any potential employees.
   2. Any vendor of AITs must disclose pertinent details on the selection criteria it adopts for its AIT.
   3. The granularity of disclosure required from AIT users and vendors is at the discretion of the authority.
   4. All disclosures must appear on all promotion materials for the said position.
4. Prohibitions.
   1. AIT may not be used to make discriminatory selections, such as race-based selection using facial recognition technology or deduction using the names of candidates.
   2. AIT may not be used at any time to make any final and conclusive decisions on the employment of any individuals.
5. Audits.
   1. An employer must regularly hire an independent auditor to audit the performance of AITs, such as outcomes in terms of gender, ethnicity, and other factors deemed necessary by an authority.
   2. All results of audits must be disclosed by an employer through convenient electronic means. This includes all parameters of the audit on an anonymous basis.
   3. The granularity of such audits and the levels of disclosure is at the discretion of the authority.
   4. Employers with operations in multiple WA states must comply with the audit and disclosure requirements of each WA state.
   5. The qualifications of the auditor shall be determined by the relevant authority.
6. Scope. This resolution is applicable to:
   1. all employers based in WA states (whether government or private); or
   2. all employees that are inhabitants of WA states.
7. Exceptions.
   1. This resolution does not regulate the use of computer database systems to conduct background checks or for checks for compliance under extant WA resolutions, such as those related to national security.
   2. The definition of AIT (and employees) exclude any sapient AI, or any AI with sufficient intelligence, mental acuity and other factors that qualify for legal competence, pursuant to extant WA resolutions.
8. Jurisdiction.
   1. The authority of the WA state where the potential employer is based is in charge of enforcement and interpretation of this resolution.
   2. The WA Judiciary Committee shall adjudicate in case of disputes over jurisdiction or over conflicting standards between different WA states.