There is the first glimmer of hope that concrete legislation on workers’ digital rights may finally be getting serious consideration – and in one of the most influential states.
Assemblyman Ash Kalra of the California State Assembly introduced the Workplace Technology Accountability Act (AB 1651), a groundbreaking bill backed by a broad coalition of labor and privacy advocacy groups. If enacted, AB 1651 would revolutionize workers’ digital rights, both by limiting the circumstances under which employers can use technology to surveil workers and collect their data, and by giving workers greater input overall in the use of data-driven technologies in the workplace. The bill passed the Labor and Employment Committee soon after it was introduced.
CDT has been concerned in recent years about the rising prevalence of intrusive and harmful uses of data and technology in the workplace. Our report last year on bossware (intensive electronic workplace surveillance and algorithmic management) highlighted both the potential for these systems to harm workers’ health and safety, and the legal and regulatory vacuum that allows such harmful technologies to flourish. Last fall, we highlighted the Berkeley Labor Center’s excellent policy framework, which set out guideposts for regulating data collection, electronic surveillance, and automated decision-making in the workplace.
AB 1651’s prospects are currently in question, with reports that the bill has been pulled from consideration. In the meantime, the California Chamber of Commerce and other corporate lobbying groups are strongly opposing the bill. Despite these obstacles, a strong law protecting workers’ privacy and other digital rights along the lines of AB 1651 is desperately needed and the Assembly should work to pass one – if not AB 1651 itself, then a bill that incorporates its fundamental approach and core principles.
How AB 1651 Would Protect and Empower Workers
In 2018, California enacted the California Consumer Privacy Act (CCPA), which voters then amended and expanded upon in a 2020 referendum that approved the California Privacy Rights Act (CPRA). The CCPA and CPRA provide arguably the country’s strongest privacy protections, but workers are largely exempt from the protections of CCPA and CPRA through at least the end of this year. Even if those exemptions are allowed to expire, the privacy statutes’ provisions were drafted primarily with consumers, rather than workers, in mind. Consequently, there is a pressing need for legislation that would address the unique dynamics of how technology and data are used in the workplace.
AB 1651 would fill that gap by providing a worker-centered legal framework for workplace technology rights built on three pillars:
- Requiring responsible use of digital systems by employers;
- Requiring greater transparency and disclosure in workplace data collection, electronic monitoring, and algorithmic management; and
- Requiring greater accountability by employers for digital systems’ impacts on workers.
AB 1651’s responsible use provisions include limiting employers’ use of digital systems to monitor and collect data on workers to a list of permissible purposes enumerated in the bill (such as allowing workers to accomplish essential job functions and monitoring production quality). Under the bill, the data collection or monitoring would also have to be strictly necessary to achieve the permissible purpose.
The bill would further require employers to conduct impact assessments to evaluate the risks of harm that their digital systems pose to workers and refrain from surveillance, data collection, and algorithmic management practices that harm workers’ health, safety, or legal rights. Employers would also have to ensure that humans review and corroborate the outputs of algorithmic monitoring and management systems before making significant employment decisions based on them. These and other provisions in the bill would ensure that employers are judicious in their digital practices and do not engage in data collection or surveillance that, whether purposefully or inadvertently, harms workers.
The bill’s transparency and disclosure requirements include giving workers a non-waivable right to prior notice whenever an employer engages in workplace data collection, electronic monitoring, or algorithmic decision-making. Such notice must be specific, telling workers what types of electronic monitoring they will conduct, what types of data they will collect, the reasons for the data collection or monitoring, and whether and how they will make employment-related decisions based on information collected. Employers would also be required to share relevant impact assessments with workers, as well as file them with regulators and post summaries of them online.
Finally, the bill would require accountability at all stages and levels of employers’ digital practices. Employers would have to allow workers to access and correct their data, and permit regulators to review their productivity monitoring and management systems to ensure they did not harm workers’ health and safety. Employers would have to submit all impact assessments and other key documentation regarding digital systems to regulators, who could then impose conditions or restrictions on the use of potentially harmful algorithms. The bill would also give workers a private right of action for violations of the law – a crucial enforcement mechanism, given the difficulty that under-resourced regulators would have in investigating and taking action against potentially harmful practices.
AB 1651 effectively turns the principles laid out in the Berkeley Labor Center’s 2021 policy framework into actionable legislation. Any ambiguities in the legislative text – such as the circumstances under which employers must proactively search permissibly collected worker data to purge non-work-related materials – can be resolved through amendments or agency rulemaking. There is a significant power imbalance between employers and employees. This bill would help balance that power differential to the benefit of every Californian worker. The California legislature should advance this or a similar bill so it can be a model for policy action across the country.