California often acts as the nation’s laboratory for employment laws that are eventually adopted by other states or even the federal government. Earlier this month, the California Senate passed a measure that would sharply restrict the growing use of artificial intelligence (AI) and related assessment tools in making certain employment decisions.

The "No Robo Bosses Act" would not bar use of AI tools in making promotion or disciplinary decisions, but would require actual humans to review and corroborate automated decision-making tools when taking such actions. The extent of human involvement required under the bill remains unclear. A portion of the bill prohibiting fully automated hiring was removed prior to the Senate vote. The measure would also prohibit employers from using certain tools that purport to predict employee performance or behavior based on personality, beliefs, emotional states, or other factors. An increasing number of vendors tout products they claim can detect problems and unproductive employees.

Even if passed into law, the California bill faces a potential federal ban on state regulation of AI technology contained in the Republican government funding proposal. Regardless of the fate of this measure, employers should carefully screen products intended to evaluate applicants' and employees' aptitude and performance. Unless these products have been specifically validated for use in hiring or other employment decisions, they could lead to disparate impact claims if the tools unintentionally screen out members of a classification protected under federal or state law.

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