I recently had the pleasure of speaking with the Atlantic County Bar Association. Here are some of the key takeaways from my presentation:
Employees are “consumers” under the California Consumer Privacy Act. It requires:
- Privacy notice (employee and applicant) is required (and a good idea) for all jurisdictions.
- Privacy rights like access, deletion (which are greater than the rights under labor laws).
- Data processing agreements with third parties.
- Breach reporting.
- Data minimization/data retention limitation.
Profiling that may impact employment is addressed in all 19 US state laws.
- This is an assessment/drawing inferences regarding behavior using automated processes that result in “legal or similarly significant effects”/are used to make “consequential decision.”
- Employment decisions (like impact to employment opportunity/promotion) are significant.
If you fall under this, you need to:
- Do a DPIA on the potential risk to the employee from this processing. (This may result in not being able to carry out the processing.)
- Provide an opt in/out.
Additional requirements under the new CA draft regs on risk assessment and automated decision-making tools:
- Assess whether the AI is fit for the purpose.
- Provide a pre-use notice (with more explanation regarding logic and how the AI works).
- Provide rights (e.g. opt out/access), but there are exceptions.
- No retaliation.
In the EU:
GDPR:
- All employees are protected.
Rights under GDPR with derogations (stricter stuff) under the sState laws:
- Requirements to consult with works counsel (in the new DOL AI memo too).
- Profiling that leads to potentially not seeing job ads may not be possible under legitimate interest.
EU AI Act:
- Goes into effect in 2026/27.
- Divides by role (developer and deployer). If you substantially improved the AI, you could still be a developer.
- Main issues involve high risk uses.
- Use in the workplace is high risk.
- Some uses are prohibited: (e.g. emotion recognition in the workplace and educational institutions; social scoring based on social behavior or personal characteristics; the use of AI to exploit the vulnerabilities of people (due to their age, disability, social or economic situation).
- You need to provide: transparency, risk assessments, monitoring, training and reporting.
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