California lawmakers have passed Assembly Bill 1883, a measure that would prohibit employers from using certain AI-enabled workplace-surveillance tools to “collect neural data or recognize an individual’s emotional state.” The bill is pending before Gov. Gavin Newsom.
Neural data might be a new term for many HR leaders, but in the AI age, this concept has crept into the workplace. If enacted, AB 1883 would target specific uses of AI-enabled surveillance while allowing employers to use workplace-monitoring tools for safety and other purposes when those tools do not engage in the prohibited conduct.
Read more: How the EU AI Act impacts global standards for AI in hiring
‘HR leaders should pay close attention’ to AI emotion recognition
The proposal comes as the European Union’s AI Act prohibits AI systems intended to detect the emotional state of people in workplace and education settings, except when the systems are placed on the market strictly for medical or safety reasons. The regulation defines an “emotion-recognition system” as an “AI system for the purpose of identifying or inferring emotions or intentions of natural persons on the basis of their biometric data.”
Danielle Ochs, a San Francisco shareholder at Ogletree Deakins, said the bill comes amid growing concern about workplace surveillance. Specifically, there is an eagle eye on “AI-driven tools that possess potentially intrusive monitoring capabilities,” Ochs said in an exclusive email to HR Executive.
The bill comes amid broader scrutiny of employee-monitoring technologies, including tools used for productivity management and other operational purposes. “It seems like almost weekly, employers are introduced to new AI-driven workplace tools with ever-expanding capabilities,” she said. “HR leaders should pay close attention to the rapidly changing legal landscape regulating these tools.”
Read more: Privacy risk? Employee-monitoring apps sharing worker data with Big Tech
What the bill would prohibit
AB 1883 would amend California’s Labor Code, according to Ochs. If signed by Newsom, the bill would prohibit employers from using AI-driven workplace-surveillance tools that:
- recognize an individual’s emotional state
- make inferences or predictions about an individual’s emotional state
- collect an employee’s neural data
The bill defines a “workplace surveillance tool” as “any system, application, instrument or device that collects or facilitates the collection of employee data, activities, communications, actions, biometrics or behaviors by means other than direct observation by a person.”
The definition includes, among other technologies:
- video or audio surveillance
- continuous incremental time-tracking tools
- geolocation
- electromagnetic tracking
- photoelectronic tracking.
- photo-optical systems or other similar tools
“‘Neural data’ means information that is generated by measuring the activity of an employee’s central or peripheral nervous system, and that is not inferred from nonneural information,” Ochs said.
The California Labor Commissioner and public prosecutors could enforce the measure, and employers that violate it could face civil penalties of up to $500 per violation. The bill does not expressly allow individual employees to sue employers, although other legal avenues could raise separate questions. Ochs said the bill’s language “may leave the door open for representative claims under California Private Attorneys General Act (PAGA), which allows [eligible employees] to pursue Labor Code-based penalty claims on behalf of the state.”
What the bill does, and doesn’t, do
Ochs said the use of employee-monitoring tools “has been on the rise for some time,” citing the Society for Human Resource Management and Ogletree Deakins’ observations. She identified productivity tools, safety systems and scheduling software as common examples.
“Presumably based on objections to prior versions of the bill, this bill seeks to narrowly tailor the kinds of monitoring it seeks to proscribe,” Ochs said.
Ochs said opponents had expressed concerns that the legislation would have banned facial-recognition technology or inadvertently swept in standard security systems. She also cited concerns about AI surveillance tools used for safety analytics, “such as detecting distracted or fatigued driving in commercial vehicles.”
Employers may want to examine how their systems work, particularly when a tool makes inferences about an employee rather than simply recording observable conduct.
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