A first-of-its-kind measure in California would impose significant restrictions on the use of HR technologies and requirements on employers, enforced by a strong private right of action. Among several other concerning provisions, the legislation would compel employers to provide and correct personal data held on an employee upon their request, ban certain uses of AI, and submit HR technologies to lengthy audits by independent assessors.
“All workers stand to be impacted,” by the rapid adoption of certain HR technologies, the Workplace Technology Accountability Act (AB-1651) states, “including employees, independent contractors, job applicants, and remote workers, and especially the low-wage workers, workers of color, women, and immigrants who are on the front lines of technology introduction.” The bill claims such technologies can cause harm to “worker health, safety, dignity, and autonomy.”
An “independent assessor” would conduct lengthy and intrusive audits of the use of AI or worker information system, including consulting with workers “potentially affected” by the use of such systems. It is important to note that technical standards by which to provide oversight of such systems are not yet mature and have not gained widespread acceptance among stakeholders. However, many HR Policy member are actively developing best practices and principles to build trust and promote the ethical and responsible use of AI.
Employees would be allowed to view any personal information a company holds about them, including, specifically, the contents of their personnel file or performance evaluations, and require employers to make any “corrections” unless the employer can prove the data is accurate. Such requests may be made through an “authorized representative” of the employee who is not the employer.
The above are just two of the many requirements and prohibitions within the bill, which is enforced by a private right of action. Among other areas worth noting is a limitation on the scope of information that may be collected, and bans on certain uses of artificial intelligence, such as facial recognition technology.
Background: In 2019, the California legislature adopted an amendment to the California Consumer Privacy Act, AB-25, which excluded HR data for one year. Subsequently, the exclusion was extended to January 1, 2023 via a ballot proposition, creating an opportunity to legislate in this area in 2022.
Outlook: The bill confirms many of the top employer concerns over the past several years. Currently, most comprehensive consumer privacy measures exclude HR data from their provisions, including the four passed at the state level so far. The Workplace Technology Accountability Act is the first measure submitted at the state or federal level that can be considered a comprehensive workplace privacy bill. It remains to be seen whether the legislation has enough support to advance in the California legislature. In any event, the window for extending the sunset of the HR data exclusion from California’s privacy laws is rapidly closing.
