When the Applicant Isn't Real: Employers Confront a New AI Risk

Hiring practices are being quietly tested in ways few employers anticipated. With the rapid advancement of generative AI, it’s now possible to fabricate an entire applicant identity—resumes, references, work history, and even live interview responses. These aren’t just applicants overstating credentials. In many cases, they are not real people at all.

This shift raises significant concerns for Florida employers. In roles involving remote system access, customer data, or proprietary information, a synthetic applicant could pass through automated screening and obtain credentials before any human verifies their identity. If that occurs, the employer may face not just operational risk, but legal exposure under both federal and Florida law.

One immediate concern is compliance with the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. Employers using third-party services to verify identity, conduct background checks, or evaluate applicants through algorithmic screening tools are subject to the FCRA’s notice, consent, and dispute resolution requirements. Automated screening systems that operate without meaningful human oversight may fall short of these obligations. For reference, the FCRA is available here:https://www.ftc.gov/legal-library/browse/statutes/fair-credit-reporting-act

Florida law adds further complexity. Although Florida has not enacted a biometric privacy statute, it recognizes a strong constitutional right to privacy under Article I, § 23 of the Florida Constitution. Courts have interpreted this provision broadly, and employers who collect facial images, voiceprints, or other personal data during the hiring process—especially without clearly documented consent—risk triggering claims based on intrusion or unreasonable data collection practices. This is particularly relevant when employers adopt tools that scan or analyze biometric information in video interviews or identity verification.

In addition, Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. §§ 501.201–501.213, prohibits companies from engaging in unfair or deceptive conduct in business activities, including representations made during recruitment. If an employer or its vendor misrepresents the reliability, bias resistance, or legal compliance of AI screening tools, those claims could form the basis of liability under FDUTPA. For example, promising that a screening tool is “bias-free” without evidence, or using it to exclude candidates without validated metrics, may give rise to deceptive practice allegations. Details on FDUTPA can be found here:http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0501/0501.html

Employers also must navigate the Florida Civil Rights Act (FCRA) (not to be confused with the federal credit statute), codified at Fla. Stat. §§ 760.01–760.11. This law prohibits employment discrimination based on race, sex, religion, national origin, disability, age, and other protected traits. If an AI-based hiring tool disproportionately screens out candidates in a way that correlates with these characteristics, the employer could face state-level claims—even if the bias is unintentional or the algorithm is licensed from a vendor. The full statute is available here:http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0760/0760.html

Data security is another critical area. Florida’s data breach notification law, Fla. Stat. § 501.171, requires covered entities to notify individuals and the Florida Attorney General within 30 days of discovering a breach involving personal information. If an employer’s AI hiring system is compromised—exposing applicant data such as Social Security numbers, driver license information, or other personal records—those notice requirements may apply. The statute also mandates “reasonable measures” to protect data, which may implicate how AI tools are deployed and maintained. The text of the breach law is here:http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0500-0599/0501/Sections/0501.171.html

Some employers may hope to address these risks by deploying countermeasures—tools that scan applicant videos for inconsistencies, monitor typing cadence, or flag synthetic resumes. But these tools themselves carry legal risk. Federal regulators such as the Federal Trade Commission (FTC) have cautioned that the use of AI must be transparent, explainable, and fair. Inappropriate or opaque use of detection tools can itself violate Section 5 of the FTC Act. Employers should consult the FTC’s guidance on artificial intelligence before adopting such technologies:https://www.ftc.gov/business-guidance/privacy-security/artificial-intelligence

From a risk management perspective, Florida employers should begin by identifying the roles that present the greatest vulnerability—those involving access to confidential systems or sensitive information. These positions may justify enhanced verification procedures. Vendors offering AI-based identity verification or applicant screening tools should be vetted thoroughly, with special attention to FCRA compliance, transparency, and claims about accuracy or bias mitigation. Legal and compliance personnel should be directly involved in procurement, implementation, and monitoring.

Finally, it is critical to have internal policies that address what happens when fraud is suspected. That includes who investigates, what documentation is maintained, how candidate data is secured, and what disclosures must be made under Florida law. For positions with elevated risk, layered safeguards are justified, but they must be carefully balanced against privacy and anti-discrimination obligations.

Synthetic identity fraud is not a distant risk. It is already reshaping hiring practices, particularly in remote and high-sensitivity roles. Employers who rely on AI to solve efficiency problems must be prepared for the legal and ethical challenges that come with it. Human oversight, legal review, and transparency are no longer optional; they are essential components of responsible hiring in Florida.