Workplace surveillance tools., the official text

An act to add Part 5.8 (commencing with Section 1580) to Division 2 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

Existing law establishes the Division of Labor Standards Enforcement within the Department of Industrial Relations. Existing law authorizes the division, which is headed by the Labor Commissioner, to enforce the Labor Code and all labor laws of the state, the enforcement of which is not specifically vested in any other officer, board, or commission.
This bill would, with certain exceptions, prohibit an employer from using a workplace surveillance tool that uses artificial intelligence to, among other things, collect neural data or recognize an individual’s emotional state. The bill would define an employer to include a governmental entity, including, among other entities, charter cities and the University of California.
This bill would require the Labor Commissioner to enforce the bill’s provisions, would authorize an employee to bring a civil action for specified remedies for a violation of the bill’s provisions, and would authorize a public prosecutor to enforce the provisions. The bill would subject an employer who violates the bill’s provisions to a civil penalty of up to $500 for each violation. The bill would define various terms for purposes of its provisions.
This bill would exempt from its provisions the use of a tool to the extent that its use is to ensure safety or is reasonably necessary to comply with, a federal statute, federal regulation, or binding federal contract relating to the development of aircraft for use in the national airspace or the development of products or services for national security, military, space, or defense purposes.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The people of the State of California do enact as follows:

SECTION 1.
Part 5.8 (commencing with Section 1580) is added to Division 2 of the Labor Code, to read:
5.8.
Workplace Surveillance Tools1580.
As used in this part:
(a) “Artificial intelligence” means 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.
(b) (1) “Employer” means a person or governmental entity that directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, benefits, other compensation, hours, working conditions, access to work or job opportunities, or other terms or conditions of employment, of any worker, including all branches of state government, and all cities, counties, cities and counties, charter cities, charter counties, special districts, including transit districts, the University of California, the California State University, community college districts, school districts, or any other state or local governmental entity.
(2) “Employer” includes an employer’s labor contractor.
(c) “Neural data” means information that is generated by measuring the activity of a worker’s central or peripheral nervous system, and that is not inferred from nonneural information.
(d) “Public prosecutor” has the same meaning as defined in Section 180.
(e) “Worker” means a natural person, an employee of, or an independent contractor providing service to, or through, a business or a state or local governmental entity in a workplace.
(f) “Workplace surveillance tool” means any system, application, instrument, or device that collects or facilitates the collection of worker data, activities, communications, actions, biometrics, or behaviors by means other than direct observation by a person, including, but not limited to, video or audio surveillance, continuous incremental time-tracking tools, geolocation, electromagnetic tracking, photoelectronic tracking, or that utilizes a photo-optical system or other means.

1581.
(a) An employer shall not use a workplace surveillance tool that uses artificial intelligence on workers that is capable of either of the following:
(1) Recognizing, or making inferences or predictions about, an individual’s emotional state.
(2) Collecting neural data.
(b) This section does not prohibit an employer from using a workplace surveillance tool to ensure safety, or otherwise if it does not meet the specifications in subdivision (a).

1582.
(a) The Labor Commissioner shall enforce this part, including investigating an alleged violation, and ordering appropriate temporary relief to mitigate a violation or maintain the status quo pending the completion of a full investigation or hearing through the procedures set forth in Section 98, 98.3, 98.7, 98.74, or 1197.1, including issuing a citation against an employer who violates this part and filing a civil action. If a citation is issued, the procedures for issuing, contesting, and enforcing judgments for citations and civil penalties issued by the Labor Commissioner shall be the same as those set out in Section 98.74 or 1197.1, as applicable.
(b) This part may also be enforced by a public prosecutor pursuant to Chapter 8 (commencing with Section 180) of Division 1.
(c) Alternatively to subdivisions (a) and (b), a worker, or their exclusive representative, who has suffered a violation of this part may bring a civil action in a court of competent jurisdiction for damages caused by the violation.
(d) In any civil action brought pursuant to subdivision (a), (b), or (c), the petitioner may seek appropriate temporary or preliminary injunctive relief, including punitive damages, and reasonable attorney’s fees and costs.
(e) (1) Except as provided in paragraph (2), in addition to any other remedy, an employer who violates this part may be subject to a penalty of up to five hundred dollars ($500) for each violation.
(2) An employee, the Labor Commissioner, or a public prosecutor may recover a penalty under this part as a statutory penalty paid to the employee or a civil penalty, but not both, for the same violation.
(f) An action brought pursuant to this section may be brought in the superior court in any county in which the violation in question is alleged to have occurred or in which the employer resides.
(g) This part does not preempt any city, county, or city and county ordinance that provides equal or greater protection to workers who are covered by this part.

1583.
(a) This part does not prohibit the use of a tool relating to any of the following:
(1) The development of aircraft for use in the national airspace.
(2) The development of products or services for national security, military, space, or defense purposes.
(b) The exemption in this section applies only to the use of a tool that is reasonably necessary to comply with a federal statute, federal regulation, or binding federal contract.

SEC. 2.
The Legislature finds and declares that Section 1 of this act adding Part 5.8 (commencing with Section 1580) to Division 2 of the Labor Code addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 1 of this act applies to all cities, including charter cities.