Legislative Update: Workplace Surveillance (AB 1331)
Continuing with our legislative update series, we now take a look at employer surveillance in the workplace. Governor Gavin Newsom has signed Assembly Bill (AB) 1331, to take effect January 1, 2027, curtailing public and private employers’ use of surveillance tools to monitor or surveil workers in a bathroom located in the workplace.
Here are the details:
· Most importantly, AB 1331 prohibits an employer, unless directed by a court order, from using a workplace surveillance tool to monitor or surveil employees in a bathroom located in the workplace.
o The measure has broadened the definition of “workplace surveillance tool” to mean a 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, including, but not limited to, video or audio surveillance, continuous incremental time-tracking tools, geolocation, electromagnetic tracking, photoelectronic tracking, a photo-optical system, or other means. “Workplace surveillance tool” does not include smoke or carbon monoxide detectors or weapon detection systems that automatically screen a person’s body.
· The bill grants employees the right to leave behind workplace surveillance tools that are on their person or in their possession when entering a bathroom.
o However, this does not apply, and therefore a worker does not have the right to leave behind workplace surveillance tools that are on their person or possession, if the employee is required to remain available during meal or rest periods pursuant to federal or existing state law.
· Authorizes, notwithstanding the specified prohibitions, an employer to check workplace surveillance tools for the one-time entry and exit of bathrooms in the workplace.
· Specifies that an employer is not in violation of the bill’s prohibitions in either of the following circumstances:
o An employee voluntarily chooses to bring a workplace surveillance tool into a bathroom in the workplace.
o An employee brings a workplace surveillance tool, including a badge or personal alarm system, into a bathroom in the workplace because the employer has a policy that requires workplace surveillance tools to be in the employee’s possession while on work premises for identification or safety purposes or if the tool is required to access a locked or secured bathroom, if the workplace surveillance tool meets both of the following conditions:
§ Does not detect or record audio or video.
§ Does not have physically embedded or attached artificial intelligence.
· Authorizes the Labor Commissioner and public prosecutors to enforce these provisions.
· Authorizes, in any civil action brought, the petitioner to seek appropriate temporary or preliminary injunctive relief, including punitive damages, and reasonable attorney’s fees and costs. Also specifies that in addition to any other remedy, an employer who violates these provisions shall be subject to a penalty of $500 for each violation.
What does this mean for your workplace? To prepare, before January 1, employers should prioritize the following actions:
- Conduct a Technology Inventory: Review all badge readers, hand-held scanners, apps, and wearables used by staff to see which ones continuously track data or location.
- Reconfigure Device Settings: Work with IT and software vendors to ensure tracking systems can either recognize geofenced bathroom boundaries or allow total disabling of telemetry during breaks.
- Update Workplace Policies: Update employee handbooks to explicitly allow workers to leave tracking devices at their desks or in designated areas before entering bathrooms.
- Review Vendor Contracts: Audit third-party software and security hardware providers to confirm exactly what data their tools collect and whether any prohibited AI features are attached.
If you have some sort of workplace surveillance system in place and are unsure how the provisions of AB 1331 may apply to your workplace, give Rosasco Law Group a call. We can help you navigate your way through this and the many other new employment law action items signed by the Governor this year that may affect your business.
