Sunday, November 27, 2022

CalChamber Tags Job Killer; Author Cancels Bill Hearing

Six days after the California Chamber of Commerce identified the job killer provisions of a workplace technology bill, the author pulled the proposal from the hearing agenda for the Assembly policy committee that was to consider it next.

The bill, AB 1651 (Kalra; D-San Jose), imposes overbroad, unworkable mandates on employers of all sizes, including public entities and tribal communities, that would reduce worker privacy, chill the development of new technologies, and wipe out small businesses for even a good faith mistake due to its excessively punitive enforcement mechanisms.

Given the April 29 deadline for legislative policy committees to send bills along for consideration by fiscal committees, AB 1651 will not advance this year.

In an opposition letter submitted to legislators on April 25, the CalChamber explained the numerous problems contained within this bill. Below are some of the issues the letter discusses. To read the letter in full, click here.

Counterproductive to Ensuring Worker Privacy, Safety

AB 1651, also known as the Workplace Technology Accountability Act, imposes untenable mandates on employers that will ultimately reduce employee privacy. Proposed Section 1533 provides that an employer may not “collect, store, analyze, or interpret worker data” unless it is “strictly necessary” to accomplish at least one of seven allowable reasons.

One of the many problems with this section is that it could require employers to engage in overly invasive reviews of every single document or communication produced by an employee to determine if it falls under one of the seven allowable categories, the CalChamber points out.

Under this bill, if an employee uses their work email to send a personal email, the bill seems to require the employer to actively read those emails. The employer could then be required to delete that email because it would not qualify under one of the specified categories. Having that email saved through Outlook or another email system to their server or even locally to a work-issued computer could be a violation of this proposed law. Specifically, each violation of Section 1533 would be subject to a $20,000 fine.

Moreover, the requirement to delete any data that does not fall under one of the specified categories raises significant concerns regarding preservation of evidence. This measure could frustrate an employer’s efforts to rid the workplace of sexual harassers.

An inappropriate email or text message that would help prove a harassment victim’s case may be required to be deleted under this requirement. Emails, calendar appointments, or other documents that could help support a worker’s claim for unpaid wages could be deleted. This section, the CalChamber warns, has unintended consequences that will hurt workers.

Chills Use of Electronics to Help Manage Employees

Proposed Section 1543 prohibits electronic monitoring unless it is “strictly necessary” to accomplish the purpose at issue and is the “least invasive means” that could reasonably be used.

The CalChamber points out that this requirement sets such a high standard that it could effectively chill the use of any monitoring. Devices used to track where a delivery driver is or where a technician on a house call is, are generally agreed to be beneficial to all involved: customers know when to expect these services, companies can monitor drivers for purposes of scheduling, and it enhances safety for the driver in case they need roadside assistance or an unexpected event occurs while completing their duties.

Recording customer service calls ensures quality control as well as assists other customer service representatives who help a customer because they can review prior interactions with that customer. Yet, with such a high bar, these devices could inevitably be challenged in court as to whether that is “strictly necessary” or the “least invasive means,” the CalChamber states.

As a matter of public policy, many would agree that some of these monitoring functions may not be strictly necessary, but the benefit they provide to customers, the worker, and the employer make them preferable and acceptable practices.

Further, the breadth of the definition would include standard cybersecurity tools that companies use to prevent breaches and data loss (which they would be required to do under this bill), protect their own confidential data, as well as personal data of employees and customers.

Even if this technology falls under the “allowable purposes,” it would first be subject to approval by the labor agency, which has absolutely no expertise in this issue area and will likely take months or years to approve these systems given that every company in California must submit them for approval, the CalChamber points out.

Unintended Consequences, Including Less Safe Workplaces

Lastly, the CalChamber warns that AB 1651’s restrictions on the use of electronic monitoring for employment-related decisions are overly prescriptive and may lead to bizarre public policy outcomes.

AB 1651 prohibits an employer from making any hiring, promotion, termination, or disciplinary decisions based solely on electronic monitoring. It requires “independent corroboration” — an undefined term — for any such decision.

Under this language, the CalChamber says, an employer could be prohibited from:

1. Disciplining an employee based on conduct caught on a security camera, including criminal activity.

2. Disciplining an employee for inappropriate content contained in an email.

3. Promoting a worker who is consistently meeting productivity goals as tracked by a software program.

4. Disciplining an employee based on a recorded call with a customer.

5. Disciplining a remote worker who is failing to timely take meal or rest periods (many employers are forced to have such policies because of the rampant shakedown Private Attorneys General Act (PAGA) lawsuits alleging meal and rest break violations).

6. Enforcing policies against working off-the-clock.

7. Disciplining a worker who is speeding in a school zone or consistently deviating from their delivery route.

Employers need to be able to rely on monitoring to some degree for employment-related decisions, the CalChamber states in its letter.

“Otherwise, this will result in bizarre public policy outcomes like not being able to discipline a worker for an inappropriate email or requiring supervisors to completely micro-manage workers because they must be able to independently corroborate every single thing that a worker does.”

Staff Contacts: Ronak Daylami and Ashley Hoffman

Ronak Daylami
Ronak Daylami
Ronak Daylami, an experienced attorney, joined the California Chamber of Commerce in March 2022 as a policy advocate specializing in privacy issues. She came to the CalChamber policy team from Nielsen Merksamer, where she served as senior counsel in the firm’s government law section specializing in privacy issues, state regulation of business practices, consumer protection, and legislative process. Daylami previously worked for nearly 10 years in the Capitol, most recently as the chief consultant of the Assembly Privacy and Consumer Protection Committee, where she provided expertise on privacy, cybersecurity, consumer protection, and deployment of technology by state government, as well as counsel to the committee chairman during the negotiations and passage of the California Consumer Privacy Act. She earned a B.A. in political science and minored in English at the University of California, Berkeley, and a J.D. from University of California, Hastings College of the Law, where she was a senior articles editor for the Constitutional Law Quarterly. See full bio.

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