Legislative Update: New Restrictions on Automated Decision Systems in the Workplace
Next in the lineup is newly enacted Senate Bill (SB) 947 which deals with reining in automated decision systems (ADS), a type of artificial intelligence, in the workplace.
Author’s rationale for introducing SB 947:
According to the author, Senator Jerry McNerney:
“Employers are increasingly using automated decision-making systems to surveil, manage, and replace workers in pursuit of maximizing productivity and reducing costs. While the passage of AB 701 (Chapter 197, Statutes of 2021) has prohibited employers from setting productivity demands at the expense of health and safety, "robo-bosses" continue to pose a threat to workers. Unregulated employer use of ADS leaves workers vulnerable to discrimination, lower pay, dangerous working conditions, and high risk of unjust termination. SB 947 requires human oversight and independent verification for discipline, termination, or deactivation decisions. The bill provides notice and access to data to a worker when ADS has been used to support a discipline, termination, or deactivation decision. It also prohibits the use of ADS for predictive behavior analysis of workers.”
Taking a closer look at SB 947:
Beginning July 1, 2027, some of the highlights of this legislation include:
· Prohibits an employer from using an ADS to do any of the following:
o Prevent compliance with or violate any federal, state, or local labor, occupational health and safety, employment, or civil rights laws or regulations.
o Infer employee’s protected status under Government Code Section 12940.
o Predict and take adverse action against a worker for exercising their legal rights, including, but not limited to, rights guaranteed by state and federal employment and labor law.
· Prohibits an employer from relying solely on an ADS when making a disciplinary or termination decision
· If an employer primarily relies upon an ADS output to make a disciplinary or termination decision, requires the employer to direct a human to corroborate the decision using data that was collected or used to produce the ADS output or other relevant corroborating or supporting information. “Corroborating or supporting information” may include, but is not limited to, the following: a) Supervisory or managerial evaluations. b) Personnel files. c) Work product of employees. d) Peer reviews. e) Witness interviews, that may include relevant online customer reviews.
· Prohibits an employer from using the ADS output to discipline or terminate an employee if the employer cannot corroborate the ADS output, or the human reviewer has concluded that the ADS output is inaccurate, incomplete, or misleading.
· Grants employees the right to request, and requires an employer to provide, a meaningful, objective description of the employee’s own data used by the ADS when an employer has primarily used an ADS to make disciplinary or termination decisions.
· Requires an employer that primarily relied upon an ADS to make a disciplinary or termination decision to provide the affected employee with a written post use notice at the time the employer informs the employee of the decision.
· Specifies that in any civil action or administrative proceeding brought, once it has been demonstrated that an ADS was used to make a disciplinary or termination decision, requires the employer to demonstrate that the employer did not primarily rely upon an ADS or that the employer complied with Sections 1522 and 1524 of this bill when making the disciplinary or termination decision.
· Specifies that in any action brought, the petitioner may seek appropriate temporary or preliminary injunctive relief, including punitive damages, and reasonable attorney’s fees and costs in addition to other remedies, as specified.
· Subjects an employer who violates these provisions to a civil penalty of five hundred dollars ($500) per violation.
Have you started to implement AI and/or ADS in your workplace? Consult Rosasco Law Group to ensure you are compliant with existing and newly enacted laws in this arena. We can help you forge a clear path through all of the intricacies involved in employment law so that you can breathe easy and focus on your business goals each day.
