Key Takeaways
- California’s new AI employment laws will place new limits on automated employment decisions in 2027, making AI compliance an increasingly important issue for employers.
- AB 1883 restricts how California employers can use AI-powered workplace surveillance technology that analyzes employee emotions or collects neural data.
As we recently wrote about, several new laws addressing artificial intelligence (AI) were recently signed into law in California, all of which will take effect in California next year. While these laws are specific to California, we predict other states will follow suit. We previously discussed SB 947, the “No Robo Bosses Act,” which prohibits employers from relying solely on an automated decision system (ADS) for several purposes, including to make disciplinary or termination decisions, and SB 951, which adds a requirement to Cal-WARN that employers provide specific types of notice if a mass layoff or similar event is caused in whole or substantial part by AI or other automated technology replacing or automating positions.
Now AB 1883 enters the chat. AB 1883 prohibits employers from using workplace surveillance tools that employ AI to recognize or make inferences or predictions about an employee’s emotional state or to collect neural data.
The law 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, including, but not limited to, video or audio surveillance, continuous incremental time-tracking tools, geolocation, electromagnetic tracking, photoelectronic tracking, or that utilizes a photo-optical system or other means.”
And under the law, “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.”
AB1883 does include an exception for safety monitoring, specifically, the law “does not prohibit an employer from using a workplace surveillance tool to ensure safety[.]” This exception may cover things like fatigue-monitoring systems for drivers or other safety-sensitive positions.
Violations of AB1883 may result in civil penalties of up to $500 per violation, as well as injunctive relief, punitive damages, and attorneys’ fees and costs in enforcement actions brought by the Labor Commissioner or a public prosecutor.
The takeaway is clear. Proceed with caution when using AI to make employment-related decisions and avoid relying solely on AI to make such decisions. Where AI is used in the workplace for any reason, be sure its use complies with the law.
