Governor Newsom signed Assembly Bill (AB) 1883, establishing new restrictions on how employers may use surveillance tools in the workplace, particularly those powered by artificial intelligence. A trend may be emerging as other states, such as Maine and Connecticut, have recently enacted or updated their electronic monitoring laws, and existing laws exist in states such as Delaware, New Jersey, and New York.
AB 1883 regulates an employer’s use of “workplace surveillance tools,” with a particular focus on AI-driven monitoring technologies that have become increasingly common in today’s workplaces. The law prohibits employers from deploying AI-powered surveillance tools that are capable of recognizing, or making inferences or predictions about, an individual’s emotional state, or that collect neural data.
This means technologies such as emotion recognition software and neural monitoring devices that claim to measure whether a worker is concentrating, tired, or stressed are now off-limits in California workplaces.
The law defines AI broadly as “an engineered or machine-based system that varies in its level of autonomy, and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.” Employers should note that this is a sweeping definition that could capture a wide range of tools already in use for certain use cases. Those use cases include tools that either (i) recognize or make inferences or predictions about an individual’s emotional state, or (ii) collect neural data.
The definition of “employer” meanwhile includes any person or governmental entity that directly or indirectly employs or exercises control over an employee’s wages, hours, or working conditions, and extends to farm labor contractors, foreign labor contractors, and entities contracting with labor contractors for services.
California’s Labor Commissioner and “public prosecutors”—defined under CA Labor Code Section 180 as the Attorney General, district attorneys, city and county counsel, along with city or county prosecutors—are authorized to enforce the law’s provisions. Actions may be brought in the superior court of any county where the alleged violation occurred or where the employer transacts business, and successful petitioners may be entitled to injunctive relief and awarded punitive damages, reasonable attorney’s fees, and costs. Employers found in violation additionally face penalties of $500 for each violation.
However, two notable exceptions from this bill permit the use of these types of AI-powered surveillance tools depending on the industry an employer works in, provided that industry is subject to federal laws or contracts. AB 1883 does not apply to employers responsible for the development of aircraft used in the national airspace as well as employers developing products or services for national security, military, space, or defense purposes. These exceptions also only apply to the extent this workplace surveillance is “reasonably necessary” to comply with federal laws, federal regulations, or a binding federal contract.
If you have questions about compliance with AB 1883 or related issues, contact a Jackson Lewis attorney to discuss.