AI in HR Under the Microscope in California

October 04, 2019

Alastair Mactaggart, who spurred the enactment of the California Consumer Privacy Act with a ballot initiative, has submitted a new measure that would “require much-needed transparency around automated decision-making and profiling, so consumers can know when their information is used to make adverse decisions that impact lives in critical ways, including employment.”

The initiative would require companies to disclose to California residents when they are the subject of automated “profiling,” defined in the initiative as: “any form of automated processing of personal information . . . to evaluate or predict certain personal aspects relating to a consumer, and in particular to analyze or predict aspects concerning that consumer's performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location or movements.”

AI under scrutiny: Employers would further have to disclose to California residents “meaningful information about the logic involved in using consumers’ personal information for [the above] purpose.”

“A handful of giant corporations know almost everything about us,” Mactaggart said in a press release, “chronicling everything we’ve searched for, following every one of our digital footprints, and analyzing that to control what we see every day.  These are perhaps the most powerful tools for influence in human history…shouldn’t consumers have a choice about how their own data is used?”

"What this new law comes down to is giving consumers the right to take back control over their information from thousands of giant corporations."  (According to the initiative, "'Consumer' means a natural person who is a California resident.")  Mactaggart notes that the new initiative, which would significantly expand and strengthen the CCPA, is needed due to some companies' efforts to dilute the CCPA as well as advances in technology. 

Why it matters:  Two years ago, Mactaggart leveraged a ballot initiative with overwhelming public support into forcing California lawmakers to pass the hastily-written California Consumer Privacy Act.  While this new initiative contains language from AB 25, which largely exempts HR data from the CCPA, it contradicts AB 25 in a number of its provisions.  More importantly, AB 25 sunsets on January 1, 2021—the date Mactaggart’s new initiative would take effect.  Looking ahead, it remains to be seen whether this new initiative can duplicate the success of its predecessor.  What is certain is that the first foray into regulating HR data in California has begun.