Electronic monitoring of employees working remotely has increased in recent years as employers have worried about employee productivity during the Covid-19 pandemic. Surveillance technology can track the websites an employee visits and for how long, the number of keystrokes or mouse movements an employee performs over a given period of time, when an employee is away from their computer, and even what an employee types, reads, or watches. Although the use of this technology is generally legal, it has prompted California to propose a bill aimed, among other things, at restricting employers’ use of this technology to certain times of the day, activities, and locations.
California’s Workplace Technology Accountability Act (Assembly Bill 1651), a unique measure introduced in January 2022, passed the Assembly’s Labor and Employment Committee and is currently pending with the Privacy and Consumer Protection Committee. When enacted, AB 1651 would require employers to use the “least invasive means” of electronic employee monitoring and only where “strictly necessary” to achieve at least one of the following “permitted purposes”:
1) To enable a worker to perform an essential work function
2) Monitoring of production processes or quality
3) Evaluation of job performance
4) Ensuring compliance with employment, labor or other relevant laws
5) Protection of the health, safety or security of workers
6) Administration of wages and benefits
7) Other purposes to enable business operations in accordance with the Employment Agency
Employers would also be prohibited from monitoring workers off-duty, on personal devices or in private areas, including their homes or vehicles, and using electronic surveillance systems that use “facial recognition, gait or emotion recognition technology”.
Employers would have to inform employees about what data will be collected, when it will be monitored, what algorithms their employer will use and how their employer will use the data collected. AB 1651 would give employees a private right to injunctive relief and recovery of civil penalties and attorneys’ fees. The Labor Workforce Development Agency would also be given powers to enforce and assess penalties and collect copies of notices under reporting requirements. Penalties range from $100 to $20,000 per violation.
Critics of AB 1651 argue that the permissible grounds for monitoring workers listed above are too limited and that employers should review any document or communication prepared by a worker to determine whether it falls under one of these categories, which would reduce workers’ privacy. Among other things, AB 1651 would require employers to review personal emails sent by an employee on the employer’s email server and delete any that do not serve a “permitted purpose”. An employer who does not do this will be subject to heavy penalties. Equally problematic would be that AB 1651 would interfere with an employer’s obligation to retain and investigate evidence of misconduct within its workforce. Employers could be required to delete evidence of harassment or records supporting an employee’s wage entitlement, unless those records fall into an allowable category for data surveillance and retention under AB 1651. Likewise, an accused harasser would have the right, under AB 1651, to verify the accuracy of any data collected about him or her in a personnel investigation that could compel the employer to re-examine the situation, the evidence supporting the finding of the investigation, to explain again and to disclose the source of the information. This could undermine employees’ confidentiality interests and limit an employer’s ability to investigate serious misconduct.
The scope of AB 1651 is also fairly broad and would cover employers with employees operating in California who use electronic surveillance or use automated hiring decision tools to make employment-related decisions about employees. Suppliers working with employers also have joint liability and would therefore be required to comply with AB 1651.
We will continue to provide updates on this evolving area of law and the progress of AB 1651.