California proposal could allow applicants, employees to opt out of AI profiling

Dive Brief:

  • The California Privacy Protection Agency proposed Nov. 27 rules that could allow consumers in the state to opt out of and ask for more information regarding the use of certain automated decision-making technology, including that used in hiring processes, like resume screening tools.
  • Employee-facing technologies, such as keystroke loggers, productivity monitors, video or audio recording, face or speech recognition or detection, location trackers and social media-monitoring tools, would be covered by the new rules, according to the draft.
  • Consumers would have the right to ask the intended output of the tech, how the business uses the tech and if that tech has been analyzed for fairness. The draft is set to be discussed during a CPPA board meeting Dec. 8.

Dive Insight:

California has long been at the forefront of consumer data protection law in the U.S. This rule would be among the first of its kind, according to Bloomberg Law — though New York City has a law restricting the use of artificial intelligence in the hiring process that it began to enforce this year.

Perhaps to the relief of employers, the current draft notes that companies may block opt-outs in specific situations, such as when it would be “futile” or unrealistic to use a nonautomated decision-making process — and it uses resume screening as an example.

“If a business provides resume screening and job-matching services and must screen thousands of resumes to recommend job-matches for a same-day job opportunity, the business could demonstrate the futility of developing or using a non-automated decisionmaking process because it would be futile to use a non-automated decisionmaking process to screen thousands of resumes within a few hours,” the draft reads.

Fairness in AI and automation has been a particular battleground this year as employers and consumers alike grapple with the implications of generative AI. The U.S. Equal Employment Opportunity Commission, for example, announced it will focus its enforcement efforts on potential discrimination caused by the use of AI tools.

Some states and localities, too, have laws regarding AI in employment, specifically.