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Lawmakers seek to restrict 'bossware'

AI-enabled bossware and employee monitoring tech is getting increasing attention in the U.S. Senate and by the White House. An effort may be made to get a bill passed.

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The nearly unfettered ability of businesses to use employee monitoring tech is under scrutiny. The White House and Senate Democratic leadership are gearing up for legislation that would put some restraints on using these tools.

Employee monitoring tech, sometimes referred to as bossware, is getting more sophisticated as AI-enabled analytics mature. It's a growing market that's raising concerns from workforce organizations and should be a focus for HR, which may not be aware of what tech is being used in the enterprise.

One employee monitoring technology that some see as especially intrusive is emotion AI. These are technologies "that purport to measure emotional states and vocal characteristics" of workers and "are more likely to assign negative emotional states when analyzing women and people of color," according to the Center for Democracy and Technology, American Civil Liberties Union, United Auto Workers and more than 10 other organizations in response to a request for feedback on workplace monitoring.

Senate Majority Leader Chuck Schumer (D-NY) is preparing to introduce a comprehensive AI regulation bill likely to include some restrictions on bossware. In a speech last month at the Center for Strategic and International Studies, he asked, "How do we make sure AI isn't used to exploit workers or encourage racial bias in hiring?"

Mark Goldstein, an employment attorney at Reed Smith LLP in New York, advised that, "Employers should be prepared that there will be some limits" on employee monitoring. Whether those limits will be something like a requirement to notify employees or something broader is unclear. What is certain is that "this issue will only continue to get traction," he said.

Some issues raised by critics of bossware center on the data and how it's shared and stored.

Profound implications, watchdog agency says

In response to the Biden administration's request for feedback, one federal agency, the Consumer Financial Protection Bureau, warned that information gathered through surveillance could be sold to data brokers and used by financial institutions, insurers and other employers. It would have "profound implications for many of their life decisions," such as buying a car, the organization cautioned.

It's important that employees are going to be made aware and have full transparency of exactly how they're being monitored.
Alex KarasikEmployment attorney, Duane Morris LLP

"A lot of existing privacy laws concern the notion of consent," said Alex Karasik, an employment attorney at Duane Morris LLP in Chicago. As a best practice, he said, "it's important that employees are going to be made aware and have full transparency of exactly how they're being monitored," as well as what happens to the information and how it is stored.

So far, the push in the Senate for restrictions on employee monitoring is led by Democrats. Some states have already adopted rules on employee monitoring, namely notification laws. Although Schumer has yet to release his bill, it may include legislation from one workplace surveillance critic, Sen. Bob Casey (D-PA).

Last month, Casey introduced legislation, The No Robot Bosses Act, prohibiting employers "from relying exclusively on automated decision systems in making an employment-related decision." It would also require periodic testing of automated systems to check for bias. Earlier this year, he introduced the Stop Spying Bosses Act, requiring employee notification of monitoring technology. The proposed legislation isn't advancing as a standalone bill, and may have its best chance as part of Schumer's eventual bill.

Part of the concern that's emerging, said Carrie Hoffman, an employment attorney at Foley & Lardner LLP in Dallas, is that these HR systems will make decisions about employees "without any review of the human aspect of it."

Hoffman said HR managers may not even know these tools are deployed in an organization. She said it might be beneficial for HR to ensure they know what monitoring tools other departments use.

"HR may be the first people to know that legislation is passed," Hoffman said. "But if they don't know what's being done in the workplace, that could be a problem."

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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