S4075

An Act regulating the use of AI-based systems for electronic monitoring regarding employment and public services and supplementing Title 34 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

“Authorized representative” means a representative designated by an employer or an employee, including an attorney, and, in the case of an employee, any recognized bargaining representative or majority representative of the employee.

“Automated benefit or service decision system” or “ABSDS” means any computational process, algorithm, or automated system, which utilizes information about a service beneficiary together with machine learning, statistical modeling, data analytics, artificial intelligence, or similar methods to produce outputs, including data, assumptions, predictions, scores, classifications, metrics, rankings, profiles, recommendations, inferences, conclusions, or other information, which are used make decisions regarding the provision to a service beneficiary of public benefits or services. An “automated benefit or service decision system” does not include a spam filter, firewall, antivirus, or other software not used to produce those outputs.

“Automated employment decision system” or “AEDS” means any computational process, algorithm, or automated system, which utilizes information about an employee or applicant together with machine learning, statistical modeling, data analytics, artificial intelligence, or similar methods to produce outputs, including data, assumptions, predictions, scores, classifications, metrics, rankings, profiles, recommendations, inferences, conclusions, or other information, which are used by an employer to make employment-related decisions about an employee or applicant for employment. An “automated employment decision system” does not include a spam filter, firewall, antivirus, or other software not used to produce those outputs.

“Automated services agreement” means any agreement under which a public entity buys, leases, or otherwise obtains the use from a vendor of an ABSDS, AEDS, or EMT subject to the provisions of this act, or of any new technology likely to result in a significant reduction of the amount of employment for public employees of the public entity.

“Biometric information” means data or information generated by the processing, measurement, or analysis of an employee’s or applicant’s biological, physical, or behavioral characteristics for the purpose of uniquely identifying an individual, including fingerprints, voice prints; scans or records of eye retinas or iris images; gait; facial maps, geometries, or templates; facial recognition, voice analysis or emotion recognition technology; genetic information; or other unique biological, physical, or behavioral patterns or characteristics. “Biometric information” does not include photographs, audio or video recordings, or data or information generated from photographs, or audio or video recordings.

“Commission” means the New Jersey Public Employment Relations Commission.

“Commissioner” means the Commissioner of Labor and Workforce Development.

“Department” means Department of Labor and Workforce Development.

“Electronic monitoring tool”, or “EMT”, means any system, application, instrument, or device to collect, or facilitate the collection of, data or information about an employee or applicant for employment, by means other than direct observation by a natural person, including by monitoring computer, wire, phone, or other communications, obtaining biometric information, conducting video or audio surveillance, or utilizing geolocation, electromagnetic tracking, photoelectronic or photo-optical systems, or obtaining data or information from third parties, including data brokers, about employees or applicants for employment. “EMT” does not include a system, application, instrument, or device used exclusively to implement the administrative and physical data security practices required pursuant to subsection c. of section 5 of this act.

“Employment-related decision” means a decision made, or action taken, by an employer or public employer that affects an employee’s terms or conditions of employment, including whether an applicant is hired. For independent contractors or job applicants, this means the equivalent of these decisions based on an individual’s contract with or relationship to the employer or public employer.

“Essential work functions" means the fundamental duties of a position based upon work duties actually performed over the duration of employment, as revealed by objective evidence, including the amount of time workers spend performing each function, the terms of any applicable collective bargaining agreement, workers’ past and present work experiences and performance in the position in question, and the employer’s or public employer’s reasonable, nondiscriminatory judgment as to which functions are essential. Past and current written job descriptions may be evidence as to which functions are essential, but shall not be the sole basis for this determination.

"Independent auditor" means a person or entity that conducts an objective and impartial impact assessment of an AEDS or EMT. A person is not an independent auditor of an AEDS if they currently or at any point in the five years preceding the impact assessment: are or were involved in using, developing, offering, licensing, or deploying the AEDS being assessed; have or had an employment relationship with a developer or deployer of the AEDS being assessed, or have or had a financial interest in a developer or deployer that produces, uses, sells or offers for sale, uses or licenses the AEDS being assessed.

“Information about an employee or applicant” or “employee or applicant information” means any data or information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked with, a particular employee or applicant, regardless of how the data or information is collected, inferred, or obtained, including, but not limited to:

(1) biometric, health, or wellness data or information;

(2) data or information related to workplace activities including human resources data and information such as qualitative and quantitative data and information regarding employee work performance;

(3) workplace communications and interactions of the employee; and

(4) audiovisual data and information.

“Public benefits or services” means benefits or services provided by a public body or funded by a public entity or the federal government.

"Public employee" means any employee of a public entity, whether employed on a full or part-time basis. As used in this act, the term “employees” includes “public employees,” and all provisions of the act that apply to “employees” apply to “public employees,” unless otherwise specified.

“Majority representative” means the exclusive majority representative either certified by the commission or recognized by the public employer.

"Public employer" means a public entity that employs public employees.

“Public entity” means the State of New Jersey, or any of its counties, municipalities, or other political subdivision, or any school district, special district, or authority, including a bi-state authority, or any commission, board, branch, authority, or agency of a public entity.

“Service beneficiary” means an individual applying for, or receiving, public benefits or services.

“Terms and conditions of work” includes, but is not limited to, wages, benefits, or other compensation, work hours, work schedule, performance evaluation, hiring, firing, time off, discipline, promotion, demotion, work tasks and responsibilities, assignment of work, access to work, training, and educational opportunities, productivity requirements, and workplace health and safety.

“Vendor” means any person or entity who develops or produces for sale or lease an AEDS, ABSDS or EMT to an employer. “Vendor” includes any agent, contractor, or subcontractor of the vendor.

2. No employer or public entity, vendor, or contractor acting on behalf of the employer or public entity shall:

a. Use, deploy, develop, produce, sell, or offer for sale an AEDS or ABSDS, or use data or information collected or produced by the AEDS or ABSDS, or use data or information obtained from an EMT or other surveillance of employees or service beneficiaries, that causes, contributes to, or results in, a violation of any provision of a recognized collective bargaining agreement or any State or federal labor or employment law, or that undermines, inhibits, threatens, punishes, or interferes with, employees, service beneficiaries, or applicants exercising their rights under this law, a collective bargaining agreement, or any of those laws, including using an AEDS or ABSDS, an EMT, or other surveillance of employees to identify, profile, predict, or result in a negative assessment of, employees or service beneficiaries who exercise, or will exercise, those rights;

b. Use, deploy, develop, produce, sell, or offer for sale an AEDS or ABSDS, or an EMT or other surveillance, in a manner which diminishes, undermines, or interferes with the health, safety, privacy, dignity, autonomy, or welfare of employees, applicants for employment, service beneficiaries, or members of the general public;

c. Conduct, or have conducted by a third party, electronic, audial, visual, or other monitoring or surveillance of employees in bathrooms or private areas, including, but not limited to, rooms for eating and other breaks, sick rooms, wellness rooms, locker rooms, dressing rooms, and areas designated for lactation, provided that the prohibitions of this subsection shall not apply to climate control, fire safety, or similar systems. Employees shall have the right, when in those rooms or areas, or on off-duty hours, to remove, disable, or decline to carry workplace surveillance devices the employer requires to be on their person or in their possession while working;

d. Conduct, or have conducted by a third party, an EMT or other surveillance of an employee when the employee is off duty, on leave, or on a meal or rest break, or during other time not designated for the performance of essential work functions;

e. Require an employee to install or download software or applications used to electronically monitor the employee, including by location, provided by, or on behalf of, the employer, into any personal device or personal property of the employee, including, but not limited to, vehicles, cell phones, computers, tablets, or wearables, or require the employee to wear or attach to clothing or accessories devices that monitor an employee, and the employee shall have the absolute right to refuse, without retaliation, any employer request or requirements to install or download the software or application. The applications and devices shall be disabled outside of the activities, locations and times needed for those functions, and removed when employment ends;

f. Require an employee to have a device that collects or transmits data physically implanted, or subcutaneously installed, in the employee’s body, or require an employee to disclose to the employer the identity of, or any password for any personal device or account, including any social media account, of the employee, or otherwise provide access to the account or device;

g. Conduct, or have conducted by a third party, electronic, audiovisual or other monitoring, remote sensing or tracking, or other surveillance, of a residence, personal vehicle, or property owned or leased by an employee or applicant for employment;

h. Use, deploy, develop, produce, sell, or offer for sale, an EMT or other surveillance or an AEDS or ABSDS in a manner that harms or is likely to harm the health or safety of employees, by setting, or facilitating the setting of, productivity quotas or performance standards that are likely to contribute significantly to harming worker health and safety;

i. Take adverse employment action against an employee on the sole basis of data collected via continuous incremental time-tracking tools, including keystroke logging, idle-time trackers, or mouse-movement monitors;

j. Use, deploy, develop, produce, sell, or offer for sale, an EMT or other surveillance of an employee, service beneficiary, or applicant for employment, or use, deploy, develop, produce, sell, or offer for sale, an AEDS or ABSDS, to obtain, infer, analyze, or use in making a hiring decision or other employment-related decision or decision regarding public benefits or services, any data or information about the employee’s, service beneficiary’s, or applicant for employment’s being in or perceived to be in a classification, or having or being perceived to have a characteristic, protected under section 11 of P.L.1945, c.169 (C.10:5-12), or information about present or past union membership or advocacy or any other classification or characteristic, other than unlawful behavior, of the employee or applicant for employment which is not directly related to work performance or work qualifications, or of any other classification or characteristic of a service beneficiary which is not specifically required to confirm the identity of the beneficiary or determine eligibility for public benefits or services. An employer or public entity may not, in providing employee, applicant, or service beneficiary data or information for the AEDS or ABSDS or in directly making employment-related decisions or decisions about public benefits or services, use data or information about employee, applicant, or beneficiary classification or characteristics as identified in this subsection. It shall not be a violation of this subsection for an ABSDS to retain and use information essential to providing specific public services, such as student academic records in educational services and individual health information in health services, and information specifically required to determine eligibility for the public benefits or services;

k. Transfer or otherwise disclose biometric, health, or wellness data or information, however obtained, to any third party or government entity unless required to do so under State or federal law; use biometric, health, or wellness data or information in making an employment-related decision or decision regarding public benefits or services; or retain biometric, health, or wellness data or information of an applicant for employment who has not been hired or a former employee after employment ends, or after the service beneficiary no longer receives services or benefits; or

l. Make an employment-related decision which adversely affects an employee or applicant for employment, or an action which adversely affects a service beneficiary, in retaliation against the employee, applicant, or beneficiary for disclosing, or filing a complaint with a State agency, for a violation by the employer or public entity of any provision of this act, or taking an adverse action in retaliation against the employee, applicant or service beneficiary for exercising any rights provided by this act.

3. An employer or public entity, or vendor acting on behalf of an employer or public entity shall not implement the use of an AEDS or an EMT or other surveillance of employees, or use an AEDS or information obtained through the EMT when making employment-related decisions regarding employees or applicants for employment, unless all of the following conditions are met:

a. The EMT or other surveillance, and the AEDS, are primarily intended and demonstrably verified through appropriate pretesting, validation, and relevant impact assessments conducted pursuant to this section to accomplish any of the following allowable purposes:

(1) assisting an employee to accomplish essential work functions;

(2) ensuring the quality of goods and services;

(3) making periodic assessments of employee performance, including to assist in making employment-related decisions;

(4) ensuring compliance with provisions of employment, labor, or other relevant laws;

(5) protecting the health, safety, or security of employees and the public; or

(6) administering wages and benefits.

b. The EMT and surveillance and the AEDS shall:

(1) be limited to what is necessary to accomplish the allowable purposes specified in subsection a. of this section;

(2) be used exclusively to accomplish those purposes;

(3) use the means least invasive to employees or applicants for employment needed to accomplish those purposes;

(4) be limited to the smallest number of employees and least amount of data and information needed to accomplish those purposes, and

(5) have data and information collected no more frequently than is necessary to accomplish those purposes.

c. The data and information about an employee or applicant collected by an EMT or other surveillance or used by the AEDS shall be accessed only by authorized agents of the employer, the public entity, or the employee or the employee’s authorized representative.

d. Prior to deployment or implementation, an objective and impartial impact assessment of the AEDS or EMT, including an assessment of the economic impacts on factors such as wages, hours, benefits, work opportunities, and advancement, has been conducted by an independent auditor, or, if the AEDS or EMT is to be applied to public employees, by the department, in which the auditor or the department determines and affirms in a report, with supporting documentation indicating:

(1) that the EMT requires the implementation of procedures to ensure that it is used in a manner that complies with the requirements of subsections c., d., e., f., and g. of section 2 of this act;

(2) that the AEDS or EMT complies with the requirements of subsections a., b., h. i., k. and l. of section 2 of this act and subsections a. and b. of this section, including the implementation of effective procedures to remedy potential risks to worker rights, including privacy, health and safety, dignity and autonomy, and to prevent inhibiting legally protected activity, including organizing and collective bargaining.

(3) that the AEDS or EMT complies with the requirements of subsection j. of section 2 of this act, including that the auditor or the department, with respect to classifications and characteristics identified in that subsection of employees or applicants for employment, considers, identifies, and describes any disparities in the data used to train or develop the AEDS that may result in the outputs of the AEDS having a disparate, adverse impact on employees or applicants, and that the auditor or the department determines that the AEDS includes provisions to effectively remedy any such disparate, adverse impact; and

(4) that the AEDS or EMT requires the implementation of effective procedures for monitoring, feedback, and ongoing human oversight, including full compliance with the requirements of section 9 of this act, as needed to prevent or remedy any potential discriminatory, biased, inaccurate, or harmful outcomes.

e. The vendor has provided the auditor or the department with access to all information needed to conduct the impact assessment of either an AEDS or an EMT, including, in the case of an AEDS:

(1) all documentation about its design and development, its technical specifications, the sources of data used to develop and train it, the individuals involved in its development, and a historical record of past versions of the AEDS;

(2) a detailed description of its intended purpose, deployment context, rationale for use, the categories, sources, and methods of data it utilizes;

(3) outputs and the types of employment-related decisions in which those outputs may be used;

(4) what the benefits and effects are of using the AEDS to supplement non-automated decision-making, and the impacts its use may have on overall efficiency and output for the public entity or employer that deploys it, including quantified estimates of: the amounts of cost savings for the employer or public entity; any anticipated reductions of employment by the employer or public entity; any offset to the employment reductions caused by new employment related to the human oversight requirements of section 9 of this act; and the percentage of the cost savings attributable to reductions of employment, and these estimates shall be featured prominently in the summary of the impact assessment submitted to the department pursuant to subsection g. of this section and section 4 of this act and included in the notices provided to employees or service beneficiaries pursuant to section 6 of this act; and

(5) an analysis of the accuracy, reliability, validity, and error rates of the AEDS, including the reasonably foreseeable effects of tuning, retraining, or modification.

f. The impact assessment shall be conducted not more than one year prior to deployment. For an AEDS or EMT already in use on the effective date of this act, the impact assessment shall be completed within six months after the effective date. Impact assessments shall be updated upon any substantial change in the categories, sources, quotas, metrics, thresholds, or benchmarks used by the EMT or the AEDS, or any substantial modification, retraining, repurposing, or updating which may change outputs of an AEDS. Any subsequent impact assessment or update conducted pursuant to this subsection shall be subject, in the same manner as an initial impact assessment, to all of the requirements of subsections d., e., g., and h. of this section. Until those requirements are met, the AEDS or EMT shall not be permitted to operate.

g. The report of the impact assessment shall include all of the information and data used in making its determinations, including the full data and information provided pursuant to subsections d. and e. of this section, and shall, within 60 days of its completion, submitted in its entirety, together with an accessible summary of the report, to the department, for inclusion in a public registry of impact assessments maintained by the department, and to the vendor, who shall provide the report to any employer or public entity seeking to implement the AEDS or EMT. Impact assessments in the public registry shall be made available to affected employees, applicants for employment and their authorized representatives. Proprietary information shall not be publicly disclosed unless essential, and then only in aggregated form.

h. In the case of an impact assessment conducted by the department because the AEDS or EMT is to be applied to public employees, the vendor shall pay the department the full amount of direct costs of making the impact assessment of the AEDS or EMT.

i. The employer or public entity shall provide the employees and their recognized bargaining representative notification in the manner required pursuant to subsections a. and b. of section 6 of this act, and the right to have the employer or public entity respond to concerns raised by the recognized representative of the employees in the manner provided by subsection c. of section 6 of this act.

4. A public entity, or vendor acting on behalf of a public entity, shall not implement the use an ABSDS, or use the ABSDS when making decisions regarding provision of public benefits or services to service beneficiaries, unless all of the following conditions are met:

a. An objective and impartial impact assessment of the ABSDS, including an assessment of its economic impacts on factors such as wages, hours, benefits, work opportunities, and advancement, has been conducted by the department, in which the department determines and affirms in a report, with supporting documentation indicating:

(1) that the ABSDS complies with the requirements of subsections a., b., k. and l. of section 2 of this act, including by requiring the implementation of effective procedures to remedy potential risks to the rights of service beneficiaries, including privacy, health and safety, dignity and autonomy, and to prevent inhibiting legally protected activity;

(2) that the ABSDS complies with the requirements of subsection j. of section 2 of this act, including that the department, with respect to classifications and characteristics identified in that subsection of service beneficiaries, considers, identifies, and describes any disparities in the data used to train or develop the ABSDS that may result in the outputs of the ABSDS having a disparate, adverse impact on service beneficiaries, and that the department determines that the ABSDS includes provisions to effectively remedy any such disparate, adverse impact; and

(3) that the ABSDS requires the implementation of effective procedures for monitoring, feedback, and ongoing human oversight, including full compliance with the requirements of section 9 of this act, as needed to prevent or remedy any potential discriminatory, biased, inaccurate, or harmful outcomes, including incorrect denials of public benefits or services based on mistaken claims of fraud by beneficiaries.

b. The vendor has provided the department with access to all information needed to conduct the impact assessment of an ABSDS, including:

(2) a detailed description of its intended purpose, deployment context, rationale for use, the categories, sources, and methods of data it utilizes;

(3) outputs and the types of employment-related decisions in which such outputs may be used;

(4) what the benefits and effects are of using the ABSDS to supplement non-automated decision-making, and the impacts its use may have on overall efficiency and output for the public entity that deploys it, including quantified estimates of: the amounts of savings for the public entity; any anticipated reductions of employment by the employer or public entity; any offset to the employment reductions caused by new employment related to the human oversight requirements of section 9 of this act; and the percentage of cost savings attributable to reductions of employment, and these estimates shall be featured prominently in the summary of the impact assessment submitted to the department pursuant to subsection e. of this section and section 4 of this act and included in the notices submitted to employees or service beneficiaries pursuant to section 6 of this act; and

(5) an analysis of the accuracy, reliability, validity, and error rates of the ABSDS, including the reasonably foreseeable effects of tuning, retraining, or modification.

c. The data and information used by the ABSDS shall be accessed only by authorized agents of the public entity or service beneficiary.

d. The impact assessment shall be conducted not more than one year prior to deployment. For an ABSDS already in use on the effective date of this act, the impact assessment shall be completed within one year after the effective date. Impact assessments shall be updated upon any substantial change in the categories, sources, quotas, metrics, thresholds, or benchmarks used by the ABSDS, or any substantial modification, retraining, repurposing, or updating which may change outputs of an ABSDS. Any subsequent impact assessment or update conducted pursuant to this subsection shall be subject, in the same manner as an initial impact assessment, to all of the requirements of subsections a. b., and e. of this section. Until those requirements are met, the ABSDS shall not be permitted to operate.

e. The report of the impact assessment shall include all of the information and data used in making its determinations, including the full data and information provided pursuant to subsections a. and b. of this section, and shall, within 60 days of its completion, be submitted in its entirety, together with an accessible summary of the report, to the department, for inclusion in a public registry of impact assessments maintained by the department, and to the vendor, who shall provide it to any public entity seeking to implement the ABSDS. Impact assessments in the public registry shall be made available to affected service recipients, entities, applicants for employment and their authorized representatives.

f. The vendor shall pay the department the full amount of the direct costs of making the impact assessment of the ABSDS.

5. a. (1) An employer, public entity, vendor, or contractor shall ensure that no data or information about an employee or applicant, or service beneficiary, or applicant for employment collected by an EMT or other surveillance, and no output of an AEDS, or data or information used to produce that output, is sold, licensed, transferred, disclosed, or shared to or with any third party by the employer, public entity, or vendor, without the uncoerced written consent of the employee, service beneficiary, or applicant for employment, except that the data or information may be provided to the applicant, service beneficiary, employee, or an authorized representative, or to a law enforcement authority or a court when required by law. All information about an applicant for employment or public benefits or services, including any applicant video, shall be destroyed at the request of the applicant. A vendor shall return to the employer or public entity and delete all employee, applicant, and service beneficiary information once the contract between the vendor and the employer or public entity is terminated.

(2) An employer, public entity, or vendor acting on behalf of an employer shall ensure that all information and data and information about an employee or service beneficiary, held by the employer, public entity, or vendor is accurate and up to date. An employer or public entity shall notify an employee or service beneficiary of any significant change in the data or information held by the employer or public entity or vendor. The notification shall inform the employee or service beneficiary of the change and the right of the employee, service beneficiary, or a designated representative, to access to any data or information about the employee or service beneficiary held by the employer, public entity, or vendor and make a written request to correct inaccurate information or remove information being retained or used in a manner that violates the provisions of this act, and, in addition, the employee or service beneficiary, even if not notified of any change, shall, at least one time per year, have the right to have access to the data and information and seek any needed corrections or removals. If the employer or public entity does not change or remove the information as requested, the employer or public entity shall provide a written explanation of the reason for that decision, and retain copies of the request and the written explanation, to be available for consideration in any appeal of an adverse decision made pursuant to section 8 of this act.

b. An employer or public entity shall make, keep, and preserve, for not less than three years, true and accurate records, including complete records of data and information about an employee or applicant, or service beneficiary, or applicant for employment collected by an EMT or other surveillance and all data and information used by an AEDS for outputs concerning the employee, service beneficiary, or applicant, and all performance evaluations, validation results and impact assessments. Any data or information for which an applicant has exercised their right to have destroyed pursuant to subsection a. of this section shall be exempt from the record retention requirements of this subsection once the records are destroyed. The employer or public entity shall destroy the data and information no later than 37 months after collection unless the employee, service beneficiary, or applicant has provided uncoerced written consent for the employer or public entity to retain them.

c. An employer or public entity shall establish, implement, and maintain reasonable administrative and physical data security practices to protect the confidentiality, integrity and accessibility of employee, service beneficiary, or applicant data and information, which shall be in compliance with any recordkeeping, data retention, and security requirements specified by the commissioner. The employer or public entity, and any vendor keeping employee, service beneficiary, or applicant data, shall promptly provide the department and each affected employee or service beneficiary, a written notice of any security breach, within 48 hours of the breach, describing the specific categories of data that were, or are reasonably believed to have been, accessed or acquired by an unauthorized person, and the steps the employer or public entity and vendor will take to address the impact of the data breach on affected individuals. The employer or public entity and the vendor shall be jointly and severally liable for any damages caused to the employee, service beneficiary, or applicant for employment by fraud or theft made possible by a failure of the employer or public entity or vendor to secure personal data and information of the employee, service beneficiary, or applicant held by the employer or public entity.

6. a. An employer or public entity shall not implement an EMT or other surveillance or the use of an AEDS or ABSDS unless the employer or public entity has provided a written notice to all affected service beneficiaries and employees, including public employees making decisions about public benefits or services for service beneficiaries, and to any recognized bargaining representative of the employees, at least 60 days prior to implementation. If the EMT, AEDS, or SBSDS was in operation on the effective date of this act, the written notice shall be provided not more than 60 days after the effective date of this act. For an employee hired after the effective date of this act, written notice shall be provided not more than 30 days after the hiring, and the employer shall obtain a written acknowledgement of receipt of the notice by the employee. The notice shall include, except that the notice to service beneficiaries shall not include the disclosures indicated in paragraphs (5) and (6) of this subsection, the following disclosures:

(1) that the use of an AEDS, ABSDS, or EMT or surveillance is being implemented, and what type of decisions that will be affected by the AEDS, ABSDS or the EMT or surveillance;

(2) copies of the summaries of the impact assessment reports of the AEDS, ABSDS, or EMT conducted by an independent auditor or the department conducted pursuant to subsection d. of section 3, or subsection a. of section 4, of the act, and directions on how to obtain the entire impact assessment report from the public registry maintained by the department;

(3) a description of the data and information that will be collected and the outputs that will be used, specifying, in the case of an employee or public employee, for which of the allowable purposes identified in subsection a. of section 3 of this act they will be used;

(4) the rights provided by this section and section 8 of this act to employees and service beneficiaries, and their authorized representatives, to have access to all relevant data and information and to contest any disclosure of the notice;

(5) a description of any performance standard, productivity quota, or other related measure used in evaluating employees, including public employees making decisions about public benefits or services for service beneficiaries, a description of what data and information is collected, and a description of any adverse consequences or positive incentives associated with the standards or quotas; and

(6) the obligation stipulated in subsection c. of this section that an employer or public entity, upon a request of the recognized bargaining representative of the employees, to respond, in the manner specified by that subsection, to concerns raised the representative regarding the AEDS, ABSDS, EMT, or surveillance.

b. Employers or public entities shall give employees, and any recognized bargaining representative of the employees, at least 60 days written notice before the implementation of any significant changes in the EMT, AEDS, or ABSDS or in the employer’s or public entity’s use of an EMT or surveillance or use of an AEDS or ABSDS.

c. If a recognized bargaining representative of the employees, within 30 days of receiving a notice pursuant to subsection a. or b. of this section, notifies the employer or public entity of specific concerns they have of an AEDS, ABSDS, EMT, or surveillance not being in compliance with the provisions of this act, other law, or applicable collective bargaining agreement, including whether the impact assessment was accurate in deeming the AEDS, ABSDS, EMT, or surveillance to be in compliance, the employer or public entity shall not implement the AEDS, ABSDS, EMT, or surveillance until the employer or public entity has provided the representative of the employees with a written response to the specific concerns which includes any modification of the AEDS, ABSDS, or EMT which the employer or public entity agrees is needed for compliance, or an explanation of why the employer or public entity believes no modification is necessary to be in compliance. If the employee representative is not satisfied with the response, the representative may seek relief in an administrative action pursuant to section 18 of this act, in a civil action pursuant to the provisions of section 19 of this act, or in a grievance or arbitration procedure outlined in an applicable collective bargaining agreement.

d. The employer or public entity shall not make any employment-related decision which has an adverse impact on an employee if the decision is based, in whole or in part, on a productivity quota or performance standard that was not previously disclosed to the employee pursuant to paragraph (5) of subsection a. of this section.

7. All notices required to be provided to employees or service beneficiaries pursuant to section 6 of this act, and all summaries of impact assessment reports required to be included with those notices, shall:

a. Be written in clear, plain language easily understood by workers without technical expertise;

b. Be translated into any language spoken by at least five percent of the employer’s or public entity’s workforce;

c. Be provided in hard copy form and, if possible, in electronic form;

d. Be posted conspicuously in the workplace and made continuously available to workers and their recognized bargaining representative; and

e. Disclose that employers and entities are prohibited from retaliating against employees or applicants for employment for exercising their rights under this act.

8. a. In the case of an employer or public employer who, with respect to public employees, uses an EMT or other surveillance, or uses an AEDS, to make, or assist in making, an employment-related decision which adversely affects an employee, or in the case of a public entity which uses an ABSDS in making a decision to reduce public benefits or services to a service beneficiary, the employer or public entity shall, at least 10 days before the decision takes effect, provide the service beneficiary or employee and any recognized bargaining representative of the employee with a written notice, which:

(1) describes and explains the reasons for the decision;

(2) provides access to all relevant data and information about the decision, including a comprehensive explanation of how the EMT, ABSDS, or AEDS are being used in making the decision; and

(3) explains that the employee, applicant for employment, service beneficiary, or an authorized representative shall have: the right to access all relevant data and information; the right to contest the decision through the procedures indicated in subsection b. of this section; and, if the employee, service beneficiary, or applicant is not satisfied with the outcome of that procedure, the right to seek relief in an administrative action pursuant to section 18 of this act, in a civil action pursuant to the provisions of section 19 of this act, or, if an employee is represented by a recognized bargaining representative, in a grievance or arbitration procedure outlined in an applicable collective bargaining agreement.

In the case of an applicant for employment or public benefits or services, an employer or public entity that uses an AEDS or ABSDS to make, or assist in making, a decision to reject the application shall provide the written notice described in this subsection not later than the time that the decision is made.

b. Upon a request from the employee, service beneficiary, applicant for employment or an authorized representative made not more than 30 days after the employer or public entity provides the written notice required by subsection a. of this section, or not more than 30 days after the adverse decision is implemented if the required notice is not given, the employer or public entity shall:

(1) permit the employee, service beneficiary, applicant or authorized representative to review and copy any data and information collected or used to make the decision, and related personnel files; disclose complete data and information regarding the impact assessments of the EMT, the ABSDS, and the AEDS conducted pursuant to section 3 of this act and oversight of the EMT, the ABSDS, and the AEDS conducted pursuant to section 9 of this act, including whether the output of the AEDS or the ABSDS was modified in the oversight process, and if so, how; provide copies of the summaries of the impact assessment reports and disclose how to access the full assessment reports on the public registry maintained by the department; and provide a clear, complete explanation of how the AEDS or the ABSDS produced any outputs related to the decision, including information about the weighting of factors and the data, algorithms, and other processes involved in making the decision;

(2) permit the employee, service beneficiary, or applicant for employment to make an appeal to: seek the correction of any inaccurate, incomplete or biased data or information; contest any adverse decision in which data or information was considered which was erroneous, incomplete or biased or which was collected, retained or used by the EMT, ABSDS, or AEDS in a manner which violates the provisions of this act; or contest any adverse decision in which the decision was otherwise made in a manner which violates the provisions of this act; and

(3) designate a human reviewer who is an employee of the employer or public entity and who is required to objectively evaluate all evidence, has sufficient authority, discretion, resources, and time to evaluate the decision, has sufficient training and expertise to have a full understanding of the data, algorithms, and other processes involved in making the decision, and has the authority to modify or overturn the decision, including the correction of any inaccurate, incomplete or biased data or information. The reviewer shall consider the appeal made by the employee, service beneficiary, or applicant for employment regarding any of the matters indicated in paragraph (2) of this subsection and issue a determination which shall be the final outcome of the procedure of this subsection for an appeal made to the employer or public entity. An employee, service beneficiary, or applicant for employment who is not satisfied with this final outcome of the procedure may seek relief in an administrative action pursuant to section 18 of this act, in a civil action pursuant to the provisions of section 19 of this act, or, if the employee is represented by a recognized bargaining representative, in a grievance or arbitration procedure outlined in an applicable collective bargaining agreement.

9. a. An employer or public entity shall not rely solely on data or information about employees or service beneficiaries collected through an EMT or other surveillance, or outputs of an AEDS or ABSDS, or information from third parties, including data brokers, when making employment-related decisions, or in the case of a public entity, when making employment-related decisions about its own employees, or making decisions about public benefits or services for service beneficiaries. Any data or information collected through an EMT or other surveillance, or used to produce, or be part of, outputs of an AEDS or ABSDS, shall be corroborated by internal reviewers designated by the employer or public entity pursuant to subsection b. of this section and shall be subject to review and challenge by the affected service beneficiary or employee or their authorized representative, as provided in paragraph (2) of subsection a. of section 5 of this act or subsection b. of section 8 of this act. No decision affecting the terms or conditions of employment or the provision of public benefits or services may be based exclusively or determinatively on AEDS or ABSDS outputs, or data and information collected by an EMT or other surveillance.

b. An employer or public entity shall establish meaningful human oversight of all employment-related decisions or decisions about public benefits or services made utilizing data or information collected by an EMT or other surveillance or AEDS or ABSDS outputs. The oversight shall include:

(1) designation of internal reviewers who are employees of the employer or public entity, and have sufficient training and expertise in the operation of whichever is used of the EMT, the ABSDS, or the AEDS, familiarity with the most recent impact assessments of the EMT, the ABSDS, or AEDS, and sufficient understanding of their use to identify potential errors, biases, or inaccuracies produced by their use;

(2) authority and discretion for the reviewers to dispute, revise, or reject AEDS or ABSDS outputs or data or information collected by an EMT or other surveillance suspected, or found, to be inaccurate, discriminatory, or otherwise invalid;

(3) a requirement that a human decision-maker review the data and information collected by an EMT or other surveillance and the AEDS and ABSDS outputs, exercise independent judgment, and consider information beyond AEDS and ABSDS outputs and data and information collected by an EMT or other surveillance, including, in the case of an employee, supervisory evaluations, personnel files, employee work product, or peer reviews, when making consequential employment-related decisions; and

(4) a requirement that the reviewers have adequate time and resources to conduct the reviews, and are available for direct communication, in person or by phone or video conference, to applicants for employment or public benefits or services, service beneficiaries affected by an adverse decision regarding public benefits or services, and employees affected by adverse employment-related decisions.

10. No employer or public entity shall discharge, or otherwise retaliate against an employee with respect to any terms and conditions of work, because the employee refused to follow the output of an AEDS, ABSDS, or other artificial intelligence system, automated decision system, algorithm, or other similar technology, if the following conditions are met:

a. the employee holds independent judgment and discretion in executing their work duties, or the work duties performed by the employee require licensure or certification by the State as a condition of employment, or independent accreditation by the employer or public entity; and

b. (1) the employee has notified a supervisor, manager, or other agent of the employer or public entity that the employee has made, in good faith and with the knowledge or reasonable belief based upon professional opinion or educational or work related experience, a determination that the output from the AEDS, ABSDS, or other artificial intelligence system, automated decision system, algorithm, or other similar technology is likely to result in harm to an employee, service beneficiary, or other individual, damage to physical property, an illegal action, or an action contrary to the licensure or certification requirements of the federal government, the State, or other applicable private licensing or certifying authority which may result in a revocation or suspension of the employee’s licensure or certification, but the employer or public entity, refused or otherwise failed to adjust the output without providing a reasonable written explanation documenting its reasons for not making an adjustment; or

(2) the employee has refused to follow the output in good faith and with the knowledge or reasonable belief, based upon professional opinion or educational or work-related experience that the output would cause harm or have an adverse impact, and due to the urgency of the potential harm or adverse impact, there is not enough time for the output to be corrected through action of the employer or public entity.

11. All aspects, actions, or consequences relating to, or resulting from, a public employer's decision to enter into an automated services agreement to use an EMT, AEDS, ABSDS, or any new technology likely to result in a significant reduction of employment, shall be mandatory subjects of negotiations.

12. No public employer shall enter into an automated services agreement during the term that an existing collective bargaining agreement with the majority representative is in effect. No public employer shall enter into an agreement after the end of the term of the current collective bargaining agreement unless the public employer:

a. Provides advance written notice to the majority representative of public employees in each collective bargaining unit which may be affected by the automated services agreement, and to the New Jersey Public Employment Relations Commission, not less than 30 days before the expiration of the existing collective bargaining agreement and not less than 90 days before the date that the public employer seeks to enter into the automated services agreement; and

b. Offers, in the advance written notice, the majority representative of the public employees in each collective bargaining unit which may be affected by the automated services agreement an opportunity to meet and consult with the public employer to discuss the decision to enter into an automated services agreement, and, upon a request of the majority representative, enters into good-faith negotiations over the impacts of the automated services agreement.

13. Each public employee replaced or displaced as the result of an automated services agreement shall:

a. receive severance pay and health benefit coverage of not less than one year for any displaced public employee, and not less than two years for an employee with five or more years of service;

b. retain all previously acquired seniority during that period;

c. have recall rights should new employment become available; and

d. have the right to receive from the public employer all training needed to fulfill oversight roles required under section 9 of this act and human roles in dealing with problems individuals have with AI decisions on public benefits or services and be given priority for any new employment associated with those roles.

14. A public employer who violates any provision of this act, including a failure to negotiate in good faith as required in section 6 of this act, shall be deemed to have committed an unfair practice, and any public employee or majority representative organization affected by the violation may, as an alternative to any other remedy provided by this act for the violation, file an unfair practice charge with the New Jersey Public Employment Relations Commission. If the employee or organization prevails on the charge, the employee is entitled to a remedy including, but not limited to, reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, attorney's fees, and any other relief the commission deems appropriate to effectuate the purposes of this act.

15. Nothing in this act shall be construed as restricting or limiting any right established or provided for employees by section 7 of P.L.1968, c.303 (C.34:13A-5.3). The purpose of this act is to provide rights in addition to those provided by section 7 of P.L.1968, c.303 (C.34:13A-5.3).

16. The requirements of this act establish minimum substantive protections governing the use of automated and surveillance technologies and shall apply to all employees. The implementation or material modification of an AEDS, ABSDS, or EMT or any substantially similar technology that affects employee terms and condition of work shall be deemed a material change in working conditions. No provision of this act, or any regulations adopted to implement or enforce this act, shall be construed as:

a. requiring an employer or public employer to reduce, or justifying an employer or public employer in reducing, protections or rights provided to an employee pursuant to an existing employer policy or collective bargaining agreement which are more favorable to an employee that those required by this act;

b. preventing the employer or public employer from agreeing, through a new employer policy or collective bargaining agreement, to provide protections or rights which are more favorable to an employee than those required by this act;

c. limiting an employee’s right to seek or obtain greater protections or rights under a collective bargaining agreement than the protections or rights provided by this act; or

d. superseding any law providing collective bargaining rights for employees, or in any way reducing or diminishing the obligations of employers under those laws.

17. No employer or public entity shall request or require an employee or applicant for employment, or service beneficiary, to accept any condition of employment or condition of receiving public benefits or services, which is contrary to the provisions of this act. Any waiver of the rights provided in this act shall be null and void.

18. a. An employer who knowingly and willfully violates any provision of this act, or who discharges, or otherwise retaliates against an employee with respect to any terms and conditions of work, because the employee has informed other employees of the employer about their rights under this act, or has, with respect to any violation of the provisions of this act by the employer, made a complaint to the employer, the commissioner, or authorized representative of the employee, or has instituted, or testified or given information in, a proceeding concerning the violation, shall be guilty of a disorderly persons offense and, upon conviction for a first violation, shall be punished by a fine of not less than $1,000 nor more than $5,000 for each employee harmed by the violation or by imprisonment of not more than 100 days, or by both the fine and imprisonment, and for second or subsequent violation, a fine of not less than $2,000 nor more than $10,000 for each employee harmed by the violation or by imprisonment of not less than 10 days and not more than 150 days, or by both the fine and imprisonment. In the case of a discharge or other discriminatory action against the employee in violation of this act, the employer shall also be required to offer reinstatement in employment to the employee, correct the discriminatory action, and pay to the employee any wages lost, or other losses, due to the discharge or the action, plus liquidated damages of up to 200 percent of the lost wages or other losses.

b. As an alternative to or in addition to any other sanctions provided by law for violations of this act, when the commissioner finds that an employer or public entity has violated this act, including by taking a retaliatory action against the employee or service beneficiary in violation of section 2 or section 10 of this act or subsection a. of this section, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $1,000 for a first violation for each employee harmed by the violation and, for each subsequent violation, up to a maximum of $5,000 for each employee harmed by the violation, specified in a schedule of penalties to be promulgated as a rule or regulation by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations, the seriousness of the violation, and the good faith of the employer or public entity. No administrative penalty shall be levied pursuant to this section unless the commissioner provides the alleged violator with notification of the violation and the amount of the penalty and an opportunity to request a hearing before the commissioner or his designee within 15 days following the receipt of the notice. If a hearing is requested, the commissioner shall issue a final order upon making a finding that a violation has occurred. If no hearing is requested, the notice shall become a final order upon expiration of the 15-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the department.

The payment of a fine shall not be required for a first violation by an employer if the employer shows to the satisfaction of the commissioner that the act or omission constituting the violation was an inadvertent error made in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation, and the employer acknowledges that the employer violated the law and corrects the violation, reinstates the employee, and pays any lost wages owed within 30 days of notice of the violation, as appropriate.

c. Taking an adverse employment action against an employee or an adverse action regarding public benefits or services against a service beneficiary within 90 days of the time that the employee or service beneficiary makes a complaint or takes an action regarding a violation of this act shall raise a rebuttable presumption that the action was knowingly taken in retaliation.

19. a. If an employee or applicant for employment is adversely affected by an employment-related decision made by an employer or public entity in violation of the provisions of this act, or if a service beneficiary is adversely affected by a decision by a public entity regarding public benefits or services in violation of this act, including any retaliatory action against the employee, service beneficiary, or applicant in violation of section 10 or section 18 of this act, the employee, service beneficiary, or applicant may institute a civil action against the employer or public entity in a court of competent jurisdiction.

b. In the case of an adverse employment-related decision or an adverse decision about public benefits or services made in which an EMT, other surveillance, AEDS, or ABSDS was used to make or assist in making the decision, the employee, service beneficiary, or applicant shall first follow the procedures for contesting the adverse decisions provided by subsection b. of section 8 of this act, and may institute a civil action pursuant to this section only if not satisfied with the final outcome of that procedure. If liability is found, the court shall order, where appropriate and to the fullest extent possible:

(1) An injunction to restrain any violation of this act which is continuing at the time that the court issues its order;

(2) The reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position;

(3) The reinstatement of full fringe benefits and seniority rights;

(4) The compensation for all lost wages, benefits and other remuneration, with pre- and post-judgement interest, plus liquidated damages of up to 200 percent of the wages due; and

(5) The payment by the employer of reasonable costs, and attorney's fees.

In addition, the court or jury may order: for the first violation of the act, an assessment of a civil fine of not more than $10,000 and, for a subsequent violation not more than $20,000 for each individual harmed by the violation which shall be paid to the State Treasurer for deposit into the General Fund; punitive damages; or both a civil fine and punitive damages.

The employee, service beneficiary, or applicant for employment shall be entitled to maintain the action for and on behalf of other similarly situated employees, service beneficiaries, or applicants, or designate an agent or representative to maintain the action for and on behalf of all similarly situated employees, service beneficiaries, or applicants.

d. Nothing in this section shall limit the availability of other remedies at law or in equity.

20. A vendor, employer, or other deployer of an EMT, ABSDS, or AEDS shall be subject to joint and several liability and shall share responsibility for any violations of the provisions of this act which occur in connection with the deployment of the EMT, ABSDS, or AEDS. A waiver of the provisions of this section is contrary to public policy and is void and unenforceable.

21. The commissioner, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt regulations to effectuate the purposes of this act).

22. This act shall take effect 18 months after enactment.

STATEMENT

This bill is designed to ensure that there are reasonable guard rails on the use of systems using artificial intelligence (AI) and related technologies in places of employment and for public services. The bill regulates AI used in electronic monitoring tools (EMT) to collect and process a wide range of data and information about workers and job applicants and AI used by automated employment decision-making systems (AEDS) in making employment-related decisions such as hiring and firing. The bill also regulates automated benefit and service decision-making systems (ABSDS) used in making decisions related to providing public benefits and services.

The need to regulate AI-based systems

Unregulated, automated systems in places of employment are not accountable. Information from hundreds of sources, often inaccurate or incorporating longstanding biases and prejudices, can have serious adverse economic impacts on workers and claimants for benefits and services. Affected individuals rarely have access to the information used or any explanation of decision processes that can have such profound effects on their lives.

AI technologies have potential to be useful tools to improve human decision-making, but only if both the people making decisions and the people affected by the decisions have active, well-informed roles in determining how the tools are used. Because the use of AI is also another form of automation with obvious potential to displace workers, the implementation of AI technologies should be subject to requirements that employers address concerns raised by workers and unions, to seek a balance between the needs of employers for productive efficiency and the needs of workers to stay productively engaged and be involved in how the technology is implemented. Moreover, the established rights of workers to organize and bargain for a just share of the benefits of increased productivity must be protected from the threat of invasive AI-driven surveillance and intimidation.

Prohibited uses of AI-based systems

This bill requires that an AI system, specifically an EMT, AEDS, or ABSDS, cannot be used until it is screened in an “impact assessment” and approved as being in compliance with the requirements of the bill by an independent auditor or, if for governmental use, by the Department of Labor and Workforce Development. Compliance with the bill includes prohibitions of:

(1) Surveillance practices such as monitoring workers in bathrooms, rest areas, locker rooms or other non-work areas or outside of the workplace, surveillance outside of work times, or compelling workers to install monitoring software in personal devices, have tracking devices implanted, or disclose device passwords or social media accounts;

(2) Using any AI system or surveillance in a way that causes, or contributes to, a violation of a collective bargaining agreement or of a State or federal law, or pressures employees not to exercise their rights under an agreement or those laws;

(3) Using an AI system to set, or facilitate setting, performance standards or productivity quotas likely to contribute significantly to harming worker health and safety;

(4) Using AI systems to discriminate in employment decisions, including hiring or firing, or decisions about public benefits or services, by using information regarding any classification or characteristic of an individual protected under State or federal law, or information about union affiliation, or any other classification or characteristic, other than unlawful behavior, not directly related to work performance or work qualifications or eligibility for benefits or services.

Procedures for impact assessments and approvals of AI-based systems

The impact assessment for an AEDS or EMT must also confirm that it is primarily intended to be used for specified business purposes like ensuring the quality of goods and services, assessing employee performance, administering wages and benefits, and complying with relevant laws, all done with means least invasive to workers, without compiling or using data not needed for the specified purposes.

Vendors of AEDS’s seeking approval for their use must provide the independent auditor or the department conducting the impact assessment with:

(1) Detailed documentation about AEDS design and development, and sources of the data used to develop and train the AEDS;

(2) Its intended purpose, deployment context, rationale for use, and its outputs and types of employment decisions in which the outputs will be used;

(3) An analysis of the accuracy, reliability, validity, and error rates of the AEDS, including the reasonably foreseeable effects of tuning, retraining, or modification; and

(4) What impacts its use may have on efficiency and output for the employer that deploys it, including quantified estimates of: the increased earnings and cost savings for the employer, any employment losses for the workers, any new employment related to human oversight, and the percent of the increased earnings and cost savings that are due to reduced employment.

The full report of the impact assessment, and a summary of the report, produced by the independent auditor or the department, is to be kept in a public registry maintained by the department and made available to employees and their unions, and employers or public entities using the AEDS, ABSDS, or EMT.

Notification and disclosure requirements; right to have employers respond to worker and union concerns

The employer or public entity is required to give written notice to its employees and any union representing them, 60 days in advance, that it intends to implement the AEDS or EMT. The notice is required to include:

(1) A detailed description of the AEDS, ABSDS or EMT and how they will be used;

(2) A copy of the summary of the impact assessment report and instructions for accessing the entire report from the public registry;

(3) Disclosure of the right to have access to all information relevant to contest any disclosure in the notice;

(4) A statement of the obligation of the employer or entity to address concerns raised by any union of their employees over any possible lack of compliance with the requirements of the bill; and

(5) Descriptions of any performance standards or productivity quotas used to evaluate workers.

Employers are not required to have performance standards or productivity quotas, but they are not allowed to take any adverse action against an employee for not meeting a standard or quota that was not disclosed.

An employer or public entity is required to notify employees of any significant change in the AEDS, ABSDS or EMT or the way they are used, and provide the same opportunity to raise concerns regarding potential violations as in the initial implementation. The bill requires employers and vendors to keep all information about individuals accurate and up to date, and give them access to the information and a right to seek corrections of inaccurate information or information kept in violation of the bill’s requirements, either when notice is given of a change, or at least once per year even if there is no change.

Data security

The bill prevents the release of information by an employer, public entity or vendor to third parties without the individual’s consent in most circumstances, and requires removal of information when the legitimate need for it ends. Employers and vendors are responsible for data security and are jointly and severally liable for damages caused by any security breach.

Procedures and appeal rights regarding adverse decisions with AI-based systems

Employers and public entities are required to notify individuals of adverse decisions like a termination or a denial of public benefits or services at least 10 days in advance and give affected individuals and their authorized representatives an explanation of the decision, access to all relevant information, and the right to contest the decision through a discussion with a human reviewer employed by the employer or entity and given authority to correct errors, or, if the individual not satisfied, through an administrative or civil action or a grievance or arbitration procedure under a collective bargaining agreement.

Human oversight of AI-based systems

Employers and public entities are not allowed to rely primarily on data or outputs from an EMT, AEDS, or ABSDS, or information from third parties like data brokers, when making decisions about employment, benefits or services, or to make decisions based exclusively on EMT, AED or ABSDS information or data. The bill requires users of those systems to establish meaningful human oversight of them, designating employees as internal reviewers with sufficient expertise about the systems to identify potential errors, biases, or inaccuracies produced by their use, and authority to revise or reject system outputs.

The bill also gives all employees the right to not follow AI outputs which they reasonably believe will cause harm, after notifying the employer of the problem if there is time to do so.

Public employer use of AI-based systems and technologies reducing employment a mandatory subject of bargaining; rights of displaced workers

The bill makes a public employer decision to implement an EMT, AEDS or ABSDS or a new technology likely to result in a significant job loss a mandatory subject of collective negotiation. The public employer may not implement any of those systems or technologies during the term of a current contract, but must, at least 30 days before the contract expires, give at least 90 days’ notice before the date of the implementation and negotiate in good faith over the impact. Public employees who are displaced as a result are entitled to:

(1) Receive severance pay and health benefits for least one year, or at least two years for employees with five or more years of service;

(2) Retain acquired seniority rights;

(3) Recall rights;

(4) The right to any training needed to fulfill human oversight roles and human roles dealing with problems individuals have with AI decisions, and priority for any new employment in those roles.