The COVID-19 pandemic has accelerated the adoption of remote work arrangements, resulting in increased electronic monitoring of employees by employers. This has raised concerns about employee privacy, leading California to introduce the Workplace Technology Accountability Act (Assembly Bill 1651), which aims to regulate the use of electronic monitoring in the workplace. HR professionals have the on-going responsibility of understanding and navigating the implications of this proposed bill for employers and employees in this uncharted territory.

Under AB 1651, employers would be required to use the “least invasive means” of electronic monitoring of employees, and only when “strictly necessary” to accomplish one of the allowable purposes listed in the bill.

What? Vague terminology from the powers that be for employers to interpret? Unheard of…  

These purposes include allowing a worker to accomplish an essential job function, monitoring production processes or quality, assessing worker performance, ensuring compliance with employment or labor laws, protecting the health, safety, or security of workers, administering wages and benefits, and enabling business operations as determined by the labor agency.

The bill also includes provisions designed to protect employee privacy. Employers would be prohibited from monitoring workers off-duty, on personal devices, or in private areas, including their residences or vehicles. The use of electronic monitoring systems that employ facial recognition, gait, or emotion recognition technology would also be banned. (Some time clock software offer these functions as part of their platform, and we’d recommend consulting an attorney regarding compliance.) 

Employers would be required to inform employees what data is being collected, when they are being monitored, what algorithms their employer is using, and how their employer will use the collected data. This would give employees greater transparency about the use of electronic monitoring in the workplace. Employees also have a private right of action for injunctive relief and recovery of civil penalties and attorney’s fees. The Labor Workforce Development Agency would be given the authority to enforce and assess penalties and collect copies of notices under the reporting requirements. Penalties for non-compliance with AB 1651 would range from $100 to $20,000 per violation. 

Worth the gamble? Probably not…

Critics of AB 1651 argue that the allowable reasons for monitoring employees are too limited, and that employers would have to review every document or communication produced by an employee to determine if it falls under one of these categories, thereby reducing employee privacy. For example, 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 satisfy an “allowable purpose.” Failure to comply would result in onerous penalties. AB 1651 could also interfere with an employer’s obligation to preserve evidence of, and investigate, misconduct within its workforce. Employers could be required to delete evidence of harassment or records supporting an employee’s wage claim that do not fall within an allowable category for data monitoring and preservation under AB 1651. Similarly, employees accused of harassment could request to review and verify evidence against them, which could require HR to re-open the investigation.

The scope of the bill is quite broad and would cover employers with workers who operate in California, use electronic monitoring, or use automated employment decision tools to make employment-related decisions about workers. Vendors working with employers would also share liability and, therefore, would be obligated to comply with AB 1651.

It is important to be aware of the evolving laws and regulations related to electronic monitoring in the workplace. Employers should be mindful of the potential impact of AB 1651 and other similar laws on their operations and employee privacy. The bottom line…. Ensure that workplace policies are using electronic monitoring systems in a manner that is consistent with applicable laws and regulations, and that employees are being provided with appropriate notice and transparency regarding the use of such systems.

Lastly (saved for impact, not because of unimportance), employers should also consider the potential impact of electronic monitoring on employee morale and productivity. While electronic monitoring can be an effective tool for improving productivity and quality control, it can also create an atmosphere of distrust and reduce employee morale. Employers should communicate with employees about the reasons for electronic monitoring and how it will be used and ensure that they are using electronic monitoring in ways that are above reproach. If employees will be required to display their work in full transparency, the example should be set from above. 

It’s a whole new world (and not in a magic carpet sort of whimsical way), with no clear or simple path to be found just yet. Don’t step into the trap of fear when having to navigate something new and unfamiliar. One of the most essential and helpful keys to remember along this journey – you’re not alone. 

Need assistance in developing remote working policies, or setting up a communication plan with your staff? Clarity HR can help! 

We are on the journey with you. 

Written by: Noah Baker

March 6, 2023

Sources

1. National Law Review 
2. California Lawyers Associate