California employers: Following NYC’s footsteps, California is considering legislation concerning the use of artificial intelligence (“AI”) in employment decisions, among others.

Assembly Bill No. 331 would require covered individuals or entities who use an automated decision tool to make “consequential decisions” (including decisions that affect one’s employment) to perform an “impact assessment” on an annual basis, including:

  1. a description of the tool’s outputs and how they are used to make a consequential decision;
  2. an analysis of potential adverse impacts on the basis of sex, race, color, ethnicity, religion, age, national origin, and other protected characteristics from the use of the tool; and
  3. a description of the safeguards implemented to address any reasonably foreseeable risks of algorithmic discrimination arising from the use of the tool known to the user at the time of the assessment.

Additionally, the bill requires users to: (A) notify people that automated decision tool are being use at or before the tool is used to make the decision; and (B) establish a governance program to measure and manage the reasonably foreseeable risks of algorithmic discrimination associated with use of the tool. See: Bill Text: CA AB331 | 2023-2024 | Regular Session | Amended | LegiScan

The California Civil Rights Council (“CRC”) also updated its proposed revisions to regulations addressing the use of automated decision tools to make employment decisions, to further define key such as “automated-decision systems,” “artificial intelligence,” “machine learning,” and “adverse impact.”  See: Attachment-C-Proposed-Modifications-to-Employment-Regulations-Regarding-Automated-Decision-Systems.pdf

Finally, under Senate Bill No. 721, a 10-member “Working Group” consisting of appointees by various California government officials would be formed with the purpose of collecting feedback from stakeholders such as academics, consumer advocacy groups, and businesses impacted by AI policies, to deliver a report to the California legislature regarding artificial intelligence on or before January 1, 2025 and every two years thereafter. See: Bill Text: CA SB721 | 2023-2024 | Regular Session | Amended | LegiScan