Consent to Face Analysis in a Job Interview: Four Statutes, Four Different Asks

Maryland: A Waiver With Four Contents

Maryland's statute is the narrowest of the four and the easiest to state. Chapter 446 of the 2020 session, House Bill 1202, added § 3-717 to the Labor and Employment Article. It was enacted under Article II, § 17(c) of the Maryland Constitution on May 8, 2020 and took effect October 1, 2020.

Subsection (b) provides that an employer may not use a facial recognition service for the purpose of creating a facial template during an applicant's interview for employment unless the applicant consents under subsection (c). Two defined terms carry the section. A "facial recognition service" is "technology that analyzes facial features and is used for recognition or persistent tracking of individuals in still or video images." A "facial template" is "the machine-interpretable pattern of facial features that is extracted from one or more images of an individual by a facial recognition service."

The prohibition is therefore keyed to a purpose rather than to the use of the technology as such: what the section reaches is use of a facial recognition service for the purpose of creating a facial template, during an interview, of an applicant.

What the Maryland Waiver Must State

Subsection (c) sets out the consent mechanism and its contents in full. An applicant "may consent to the use of facial recognition service technology during an interview by signing a waiver," and the waiver "shall state in plain language":

• The applicant's name
• The date of the interview
• That the applicant consents to the use of facial recognition during the interview
• Whether the applicant read the consent waiver

That list is the entirety of the specified contents. The section does not require the waiver to describe what the facial recognition service does, what the template will be used for, how long it will be kept, or what happens if the applicant declines to sign. The fourth item is unusual in drafting terms: rather than requiring that the applicant read the waiver, it requires that the waiver state whether the applicant read it.

Illinois: Notice, Explanation, Consent

The Artificial Intelligence Video Interview Act, 820 ILCS 42, took a different route. Enacted as Public Act 101-260 effective January 1, 2020, it applies to an employer "that asks applicants to record video interviews and uses an artificial intelligence analysis of the applicant-submitted videos," when considering applicants for positions based in Illinois. Section 5 requires three things, each before asking applicants to submit video interviews:

• Notify each applicant before the interview that artificial intelligence may be used to analyze the applicant's video interview and consider the applicant's fitness for the position
• Provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants
• Obtain, before the interview, consent from the applicant to be evaluated by the artificial intelligence program as described in the information provided

Section 5 closes with a flat sentence: "An employer may not use artificial intelligence to evaluate applicants who have not consented to the use of artificial intelligence analysis." Unlike Maryland's waiver, the Illinois consent is tethered to a description — the applicant consents "as described in the information provided" — which makes the second element a precondition to the validity of the third.

The Act adds two duties that have nothing to do with consent. Section 10 bars an employer from sharing applicant videos except with persons whose expertise or technology is necessary to evaluate an applicant's fitness for a position. Section 15 provides that on an applicant's request, the employer must within 30 days delete the applicant's interviews and instruct any other persons who received copies to delete them as well, including all electronically generated backup copies, and that any such person shall comply.

The Illinois Demographic Reporting Duty

Section 20, as amended by Public Act 102-47 effective January 1, 2022, attaches a reporting obligation to a narrower set of employers: those that rely solely upon an artificial intelligence analysis of a video interview to determine whether an applicant will be selected for an in-person interview. Those employers must collect the race and ethnicity of applicants who are and are not afforded an in-person interview after the analysis, and of applicants who are hired.

The data goes to the Department of Commerce and Economic Opportunity annually by December 31, covering the 12-month period ending on November 30 preceding the filing. The Department must analyze what it receives and report to the Governor and General Assembly by July 1 each year "whether the data discloses a racial bias in the use of artificial intelligence." The trigger — sole reliance on the analysis for the in-person interview decision — is narrower than the trigger for the notice and consent duties in section 5.

Where BIPA Overlaps

A face analyzed during hiring may fall under a second Illinois statute. BIPA defines a biometric identifier to include a "scan of hand or face geometry," while expressly excluding photographs, writing samples, demographic data and physical descriptions such as height, weight, hair color or eye color.

Section 15(b) states its own permission triad, and it is worded more demandingly than either statute above. No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's biometric identifier or biometric information unless it first informs the subject in writing that a biometric identifier is being collected or stored; informs the subject in writing of the specific purpose and length of term for which it is being collected, stored, and used; and receives a written release executed by the subject. Section 15(a) separately requires a publicly available written policy establishing a retention schedule and destruction guidelines.

The consequence of the overlap is remedial. Section 20 gives "any person aggrieved by a violation of this Act" a right of action, with liquidated damages of $1,000 or actual damages for a negligent violation, $5,000 or actual damages for an intentional or reckless one, reasonable attorneys' fees, costs and expert witness fees, and other relief including an injunction. Subsection 20(b), added by later amendment, provides that repeated collection of the same identifier from the same person by the same method is a single violation of section 15(b) for which the aggrieved person may recover at most once.

Texas: Inform and Consent, With an Employment Presumption

Texas Business and Commerce Code § 503.001 defines a biometric identifier as "a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry," and subsection (b) provides that a person may not capture one for a commercial purpose unless the person informs the individual before capturing it and receives the individual's consent to the capture. The statute prescribes no form for either step — no writing requirement, no specified contents.

Subsection (c-2) is the provision written for the employment setting: "If a biometric identifier captured for a commercial purpose has been collected for security purposes by an employer, the purpose for collecting the identifier under Subsection (c)(3) is presumed to expire on termination of the employment relationship." Subsection (c)(3) is the destruction rule, requiring destruction within a reasonable time and not later than the first anniversary of the date the collection purpose expires. Read together, they set a default clock that starts running when employment ends.

Subsection (b-1) addresses a question the interview context raises directly: an individual has not been informed of and has not consented to capture or storage "based solely on the existence of an image or other media containing one or more biometric identifiers of the individual on the Internet or other publicly available source," unless that individual made it publicly available. The section carries a civil penalty of not more than $25,000 for each violation, and the statute provides that the attorney general may bring an action to recover it.

Amendments made by Chapter 1174 of the 2025 session, House Bill 149, effective January 1, 2026, added exceptions in subsection (e) for the training, processing or storage of biometric identifiers involved in developing, training, evaluating or offering artificial intelligence models or systems — but only "unless a system is used or deployed for the purpose of uniquely identifying a specific individual." Subsection (f) provides that if an identifier captured for training is later used for a commercial purpose outside those exceptions, the possession and destruction provisions and the penalties apply.

What These Statutes Do Not Provide

The two statutes written specifically for hiring are the two with no enforcement text. Chapter 446 as enacted consists of the definitions, the prohibition, the waiver provision and an effective date; it names no penalty, no enforcing official and no cause of action. The Artificial Intelligence Video Interview Act likewise contains no penalty provision, no enforcement authority and no private right of action across its five sections — the only obligation running to a state body is the demographic report to the Department of Commerce and Economic Opportunity, and the Department's duty on receiving it is to analyze and report rather than to act.

The remedies sit in the two general biometric statutes instead: BIPA's private right of action under section 20, and the Texas attorney general's action for a civil penalty of up to $25,000 per violation under § 503.001(d). Scope differs as well. Maryland's section reaches the creation of a facial template during an interview and nothing else. The Illinois video interview statute reaches only employers that ask applicants to record video interviews and apply an artificial intelligence analysis to them, for positions based in Illinois. Neither addresses face analysis conducted after hire.

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