On February 28, 2024, Assembly Bill 9315 for an act to amend the labor law, in relation to restricting the use of electronic monitoring and automated employment decision tools; and to amend the civil rights law, in relation to making a conforming change was referred to the Labor Committee.

What are the main aspects of the bill?

In particular, the bill defines 'automated employment decision tool' as any computational process, automated system, or algorithm utilizing machine learning, statistical modeling, data analytics, artificial intelligence (AI), or similar methods that issues a simplified output, including a score, classification, ranking, or recommendation, that is used to assist or replace decision-making for employment decisions that impact natural persons.

According to the bill, employers are prohibited from using an automated employment decision tool (AEDT) for an employment decision unless such tool has been the subject of a bias audit. Bias audits for AEDTs must, among other things:

• be conducted no more than one year prior to the use of such tool, or where the tool was in use by the employer before the effective date of the bill, within six months of the effective date of the bill;
• be conducted by an independent and impartial party with no financial or legal conflicts of interest;
• identify and describe the attributes and modeling techniques that the tool uses to produce outputs;
• evaluate whether those attributes and techniques are a scientifically valid means of evaluating an employee or candidate's performance or ability to perform the essential functions of a role, and whether those attributes may function as a proxy for belonging to a protected class;
• consider, identify, and describe any disparities in the data used to train or develop the tool and describe how those disparities may result in a disparate impact on persons belonging to a protected class, and what actions may be taken by the employer or vendor of the tool to reduce or remedy any disparate impact; and
• consider, identify, and describe any disparities in the outputs produced by the tool that may result in a disparate impact on persons belonging to a protected class, and what actions may be taken by the employer or vendor of the tool to reduce or remedy that disparate impact.

Moreover, the bill defines an 'electronic monitoring tool' as any system that facilitates the collection of data concerning worker activities or communications by any means other than direct observation by a natural person, including the use of a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic, or photo-optical system.

The bill sets specific conditions for the lawful use of an electronic monitoring tool to collect employee data by the employer, including for the purposes of:

• allowing a worker to accomplish an essential job function;
• ensuring the quality of goods and services;
• periodic assessment of worker performance;
• ensuring compliance with employment, labor, or other relevant laws;
• protecting the health, safety, or security of workers, or the security of the employer's facilities or computer networks;
• administering wages and benefits; or
• additional purposes to enable business operations as determined by the department.

The bill also requires employers that use electronic monitoring tools to provide prior written notice to all employees who may be subject to the electronic monitoring and post said notice in a conspicuous place that is readily available for viewing by employees. According to the bill, an employer must not rely solely on employee data collected through electronic monitoring when making hiring, promotion, termination, disciplinary, or compensation decisions.

You can read the bill and track its progress here.

Update: April 23, 2024

Bill amended, recommitted to Labor Committee, and reprinted

On April 16, 2024, the bill was amended, recommitted to the Labor Committee, and reprinted as Assembly Bill 9315A.  

You can read the bill and track its progress here.