Federal and State Efforts to Address Surveillance Issues

Concerns about workplace surveillance are rising across federal and state governments.

In October 2022, the White House released the Blueprint for an AI Bill of Rights. This framework outlines individual rights regarding artificial intelligence (AI) tools used in education, employment, housing, and other parts of life. The Blueprint guides federal policies and procurements toward using AI tools to foster equity, rather than risk discrimination. The priorities include using safe and effective systems, algorithmic discrimination protections, data privacy, notice and explanation, and human alternatives, consideration, and fallback.

The Blueprint for an AI Bill of Rights expresses significant caution about surveillance, noting that: “Continuous surveillance and monitoring should not be used in education, work, housing, or in other contexts where the use of such surveillance technologies is likely to limit rights, opportunities, or access.”

Workplace surveillance issues that affect people with disabilities could also have legal consequences under existing laws, such as the Americans with Disabilities Act (ADA). In 2022 the Equal Employment Opportunity Commission (EEOC) published detailed guidance on how the ADA applies to software, algorithms, and AI used to assess job applicants and employees. Employers should be careful not to use surveillance tools that target or result in discrimination against workers with disabilities because the ADA prohibits such discrimination. The ADA protects the rights of jobseekers and workers with disabilities to request reasonable accommodations, and surveillance tools must not undercut this right.

In addition, the use of surveillance tools must not supersede the fact that employers are prohibited from asking employees disability-related questions or requiring them to submit to medical examinations unless the inquiry or examination is “job-related and consistent with business necessity” or otherwise permitted by the ADA. In 2016, the EEOC issued a final rule on workplace wellness programs and Title I of the ADA. Wellness programs cannot ask for disability-specific information and incentives for health-contingent programs must be equally available to workers with and without disabilities. The Center for Democracy & Technology (CDT) covers these topics in their recent report on disability discrimination and surveillance technologies.

The Department of Labor (DOL) is also increasingly scrutinizing the use of automated systems. The Hiring Initiative to Reimagine Equity (H.I.R.E), a joint initiative by DOL’s Office of Federal Contract Compliance Programs and the EEOC, has launched several activities exploring the use of these tools, including a recent roundtable exploring the DEIA barriers that may result. The Office of Labor Management Standards is likewise prioritizing enforcement of required surveillance reporting to protect worker organizing. The Office of Disability Employment Policy is also focusing on this issue and exploring collaborations with partners to implement the Equitable AI frameworks.

State legislation is also growing. Some states, such as Connecticut, require employers to disclose if they are monitoring employee activities. Other states, such as New Jersey, have introduced legislation that would prohibit the use of automated employment decision systems that could discriminate against any person or group who belongs to a protected class.

Continue to Key Takeaways for Employers