In this episode of The Workplace podcast, CalChamber Associate General Counsel Matthew Roberts, Covington & Burling LLP Partner Lindsey Tonsager and Covington & Burling LLP Associate Attorney Jayne Ponder discuss the California Privacy Protection Agency’s (CPPA) latest regulatory efforts on automated decision-making technology (ADMT), also known more broadly as artificial intelligence (AI).
Recently, the California Civil Rights Council (CRC) approved regulations confirming that using automated-decision systems for work practices — like hiring or performance metrics — can violate the law if used in a discriminatory manner. Now, the CPPA’s regulations may require businesses to follow additional, burdensome procedures related to automated decision-making technologies.
On the podcast, Roberts, Tonsager and Ponder discuss how the CPPA’s proposed regulations are extremely broad — encompassing not only those technologies that replace human decision-making but also those that substantially facilitate human decision-making, depending on how they are used. “Technologies” like an Excel spreadsheet or a calculator could be classified as automated decision-making technology.
Plus, the CPPA’s current proposed regulations require employees and applicants to be able to opt out of having certain technologies process their personal data — meaning companies may have to document lots of information on how their various technologies work and are used. Plus, using other automated decision-making technologies could trigger these rules for employers — for example, profiling individuals in a public place, such as a retail store floor.
And the mountain of paperwork for businesses doesn’t end there! Tonsager discusses all the information a business would have to provide a consumer, applicant or employee. Ponder then describes what employers might be able to do to avoid the opt out requirements.
Finally, Tonsager and Ponder discuss the CPPA rulemaking process and what steps the business community is taking to help improve these draft regulations. Both express concerns about these proposed regulations being unconstitutionally vague and creating ADMT requirements that conflict with those of other California agencies or even other states.
Adding to the mix is that this session, the California Legislature has been extremely active in considering AI and automated decision-making, with several active bills that could apply to employers, including two CalChamber has identified as Cost Drivers.
CalChamber members can read more about the CRC regulations and current related legislative proposals in HRCalifornia Extra’s California Modifies Employment Discrimination Regulations to Include Automated-Decision Systems. Not a member? See how CalChamber can help you.
