California turns to biometrics in the workplace. Law, regulations being debated
California legislators and regulators are stirring again. This time, they see problems with how employers are using biometric surveillance and automated decision systems.
One the one hand, the state’s Fair Employment and Housing Council is considering new rules for how employment decisions are automated.
One the other, a state legislator says bosses increasingly are unnecessarily spying on the people they say they are hoping to keep during the Great Resignation.
The employment council wants to prohibit algorithms that at least tend to rule out applicants based on characteristics protected by the state. It is the same prohibition that human decision makers work with.
Facial recognition is less of an issue in this case because California already makes it illegal for employers to require photos of job applicants, although there are exceptions.
The council wants to go further, banning the use of automated decision tools and machine learning data to discover criminal histories. That might prohibit the use of photo-scraping services like those of Clearview AI, which almost certainly pick up most police booking shots.
Emotion detection, including voice analysis likewise would have to be justified. Algorithms carry the collective bias of their creators, putting people of protected categories at a disadvantage.
Recordkeeping would be updated as well, requiring employers to retain related data, included the assessment criteria used by software to make decisions.
Those who prove they were improperly passed over could seek monetary compensation.
The Society for Human Resource Management reported on the progress of the rulemaking process, taking a skeptical view.
In an article posted by SHRM, the organization noted that the proposed changes could increase liability exposure for employers adopting automated decision making.
Once aboard, new hires enter environments that increasingly are surveilled with biometric and other tools deployed to make sure people are working in the office or, more pointedly, out of the office.
Biometric systems being deployed can watch employees with webcams (sometimes using facial recognition) and keystroke counters and analyzers.
California Assemblymember Ash Kalra told Fortune magazine that despite whatever productively boosts and other worker improvements that surveillance is said to have delivered, there has been harmful overreach.
Kalra this year introduced the Workplace Technology Accountability Act to inform workers about any digital spying employers are using to monitor them.
The bill states that “data-driven workplace systems are often opaque, untested, and without any regulatory oversight.”
It is fairly light lawmaking. Besides requiring employers to inform employees, the act would give the surveilled the right to see and correct digital data collected.
Also, tools would have to be assessed for potential harms and mitigation of any related flaws before deployment. There is no call for ongoing or periodic analyses, however.