Who is Watching The Watchers? California Seeks to Limit Monitoring of Remote Employees
Tuesday, November 15, 2022

Electronic monitoring of employees’ remote work has increased in the last few years as employers have become concerned with employee productivity during the Covid-19 pandemic.  Monitoring technology can track the websites an employee visits and for how long, the number of keystrokes or mouse movements an employee has in a given time period, when an employee is away from their computer and even what an employee is typing, reading or watching.  Though generally legal, the use of this technology has prompted California to propose a bill aimed at, among other things, restricting employers’ use of such technology to specific times of day, activities and locations.

California’s Workplace Technology Accountability Act (Assembly Bill 1651), a first-of-its-kind measure that was introduced in January 2022, has passed the Assembly’s Committee on Labor and Employment and currently is pending with the Committee on Privacy and Consumer Protection.  If enacted, AB 1651 would require employers to use the “least invasive means” of electronic monitoring of employees, and only when “strictly necessary” to accomplish at least one of the following “allowable purposes”:

1) Allowing a worker to accomplish an essential job function

2) Monitoring production processes or quality

3) Assessment of worker performance

4) Ensuring compliance with employment, labor, or other relevant laws

5) Protecting the health, safety, or security of workers

6) Administering wages and benefits

7) Additional purposes to enable business operations as determined by the labor agency

Employers also would be prohibited from monitoring workers off duty, on personal devices, or in private areas, including their residences or vehicles, and from using electronic monitoring systems that use “facial recognition, gait, or emotion recognition technology.” 

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

Critics of AB 1651 argue that the above-listed 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.  Among other concerning provisions, 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.”  An employer who failed to do so would be subject to onerous penalties.  Equally problematic, AB 1651 would 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, to the extent such records fail to fall within an allowable category for data monitoring and preservation 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 human resources investigation, which could require the employer to reinvestigate the situation, re-explain the evidence supporting the outcome of the investigation and disclose the source of the information.  This could undermine employee confidentiality interests and constrain an employer’s ability to investigate serious misconduct.

The scope of AB 1651 also 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 also share liability and, therefore, would be obligated to comply with AB 1651.

We will continue to provide updates on this evolving area of law and the progress of AB 1651.


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