[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2440 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                S. 2440

  To establish an interagency task force on employer surveillance and 
            workplace technologies, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 20, 2023

  Mr. Casey (for himself, Mr. Schatz, Mr. Fetterman, and Mr. Booker) 
introduced the following bill; which was read twice and referred to the 
          Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To establish an interagency task force on employer surveillance and 
            workplace technologies, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Exploitative Workplace Surveillance 
and Technologies Task Force Act of 2023''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Applicant.--The term ``applicant'', with respect to an 
        employer, means an individual who applies, or applied, to be 
        employed by, or otherwise perform work for remuneration for, 
        the employer.
            (2) Automated decision system.--
                    (A) In general.--The term ``automated decision 
                system'' means a system, software, or process that--
                            (i) uses computation, in whole or in part, 
                        to determine outcomes, make or aid decisions 
                        (including through evaluations, metrics, or 
                        scoring), inform policy implementation, collect 
                        data or observations, or otherwise interact 
                        with individuals or communities, including such 
                        a system, software, or process derived from 
                        machine learning, statistics, or other data 
                        processing or artificial intelligence 
                        techniques; and
                            (ii) is not passive computing 
                        infrastructure.
                    (B) Passive computing infrastructure.--For purposes 
                of this paragraph, the term ``passive computing 
                infrastructure'' means any intermediary technology that 
                does not influence or determine the outcome of a 
                decision, make or aid in a decision (including through 
                evaluations, metrics, or scoring), inform policy 
                implementation, or collect data or observations, 
                including web hosting, domain registration, networking, 
                caching, data storage, or cybersecurity.
            (3) Automated decision system output.--The term ``automated 
        decision system output'', with respect to an employer, means 
        any information, assumptions, predictions, scoring, 
        recommendations, decisions, evaluations, metrics, or 
        conclusions generated by an automated decision system used by 
        the employer with respect to a worker of the employer.
            (4) Biometric information.--
                    (A) In general.--The term ``biometric information'' 
                means any information generated from the technological 
                processing of an individual's unique biological, 
                physical, or physiological characteristics that is 
                linked or reasonably linkable to an individual, 
                including--
                            (i) fingerprints;
                            (ii) voice prints;
                            (iii) iris or retina scans;
                            (iv) facial or hand mapping, geometry, or 
                        templates; or
                            (v) gait or personally identifying physical 
                        movements.
                    (B) Inclusion.--The term ``biometric information'' 
                includes information on the absence of a biometric or 
                the presence of a prosthetic.
                    (C) Exclusion.--The term ``biometric information'' 
                does not include--
                            (i) a digital or physical photograph;
                            (ii) an audio or video recording; or
                            (iii) information generated from a digital 
                        or physical photograph, or an audio or video 
                        recording, that cannot be used to identify an 
                        individual.
            (5) Data.--The term ``data'', with respect to a worker, 
        means any information that identifies, relates to, describes, 
        is reasonably capable of being associated with, or could 
        reasonably be linked, directly or indirectly, with the worker, 
        regardless of how the information is collected, inferred, or 
        obtained, including--
                    (A) personally identifiable information with 
                respect to the worker, including any name, contact 
                information, government-issued identification number, 
                financial information, criminal background, location 
                information, photographs, biometric information, health 
                or medical information, or employment history 
                associated with the worker;
                    (B) any information related to the workplace 
                activities with respect to the worker, including--
                            (i) human resources information, including 
                        the contents of a personnel file or performance 
                        evaluation;
                            (ii) work process information, such as 
                        productivity and efficiency information and 
                        time or attendance information;
                            (iii) information that captures workplace 
                        communications and interactions, including 
                        emails, texts, internal message boards, and 
                        customer interaction and ratings;
                            (iv) device usage and information, 
                        including calls placed or precise geolocation 
                        information;
                            (v) audio-video information and other 
                        information collected from sensors, including 
                        movement tracking, images, videos, and thermal-
                        sensor information;
                            (vi) biometric information;
                            (vii) information from a personality test 
                        taken by a worker, including such a test given 
                        electronically at the beginning of or during a 
                        work shift or during the application process;
                            (viii) inputs for an automated decision 
                        system or any automated decision system output;
                            (ix) information that is collected or 
                        generated to mitigate the spread of infectious 
                        diseases, including COVID-19, or to comply with 
                        any Federal, State, or local law; and
                            (x) information related to the ability of a 
                        worker and any related workplace 
                        accommodations; and
                    (C) online information with respect to the worker 
                that is collected while the worker is on- or off-duty, 
                including any internet protocol address associated with 
                the worker, the online communication platform activity 
                of the worker, any advertisement-related tracking 
                identifier associated with the worker, the internet 
                browsing history of the worker, or other digital 
                sources or unique identifiers associated with the 
                worker.
            (6) Employ.--The term ``employ'' has the meaning given such 
        term in section 3 of the Fair Labor Standards Act of 1938 (29 
        U.S.C. 203).
            (7) Employer.--
                    (A) In general.--The term ``employer'' means any 
                person who is--
                            (i)(I) a covered employer who is not 
                        described in any other subclause of this 
                        clause;
                            (II) an entity employing a State employee 
                        described in section 304(a) of the Government 
                        Employee Rights Act of 1991 (42 U.S.C. 2000e-
                        16c(a));
                            (III) an employing office, as defined in 
                        section 101 of the Congressional Accountability 
                        Act of 1995 (2 U.S.C. 1301);
                            (IV) an employing office, as defined in 
                        section 411(c) of title 3, United States Code; 
                        or
                            (V) an employing agency covered under 
                        subchapter V of chapter 63 of title 5, United 
                        States Code; and
                            (ii) engaged in commerce (including 
                        government), or an industry or activity 
                        affecting commerce (including government).
                    (B) Covered employer.--In subparagraph (A), the 
                term ``covered employer''--
                            (i) means any person engaged in commerce or 
                        in any industry or activity affecting commerce 
                        who employs, or otherwise engages for the 
                        performance of work for remuneration, 11 or 
                        more workers;
                            (ii) includes--
                                    (I) any person who acts, directly 
                                or indirectly, in the interest of a 
                                covered employer in relation to any 
                                individual performing work for 
                                remuneration for such covered employer;
                                    (II) any successor in interest of a 
                                covered employer;
                                    (III) any public agency; and
                                    (IV) the Government Accountability 
                                Office and the Library of Congress; and
                            (iii) does not include any labor 
                        organization (other than when acting as an 
                        employer) or anyone acting in the capacity of 
                        officer or agent of such labor organization.
                    (C) Public agency.--For purposes of this paragraph, 
                a public agency shall be considered to be a person 
                engaged in commerce or in an industry or activity 
                affecting commerce.
                    (D) Definitions.--For purposes of this paragraph, 
                the terms ``commerce'', ``person'', and ``public 
                agency'' have the meanings given the terms in section 3 
                of the Fair Labor Standards Act of 1938 (29 U.S.C. 
                203).
            (8) Federal agency.--The term ``Federal agency'' has the 
        meaning given the term in section 3371 of title 5, United 
        States Code.
            (9) Government entity.--The term ``government entity'' 
        means--
                    (A) a Federal agency;
                    (B) a State or political subdivision thereof;
                    (C) any agency, authority, or instrumentality of a 
                State or political subdivision thereof; or
                    (D) a Tribal government or political subdivision 
                thereof.
            (10) Impact assessment.--The term ``impact assessment'' 
        means an ongoing study on and evaluation of the use of 
        workplace surveillance or an automated decision system and the 
        impact on workers of such surveillance or system.
            (11) Indian tribe.--The term ``Indian Tribe'' means any 
        Indian or Alaska Native tribe, band, nation, pueblo, village, 
        community, component band, or component reservation 
        individually identified (including parenthetically) in the list 
        published most recently as of the date of enactment of this Act 
        pursuant to section 104 of the Federally Recognized Indian 
        Tribe List Act of 1994 (25 U.S.C. 5131).
            (12) Labor organization.--The term ``labor organization'' 
        has the meaning given the term in section 2(5) of the National 
        Labor Relations Act (29 U.S.C. 152(5)), except that such term 
        shall also include--
                    (A) any organization composed of labor 
                organizations, such as a labor organization federation 
                or a State or municipal labor body; and
                    (B) any organization which would be included in the 
                definition for such term under such section 2(5) but 
                for the fact that the organization represents--
                            (i) individuals employed by the United 
                        States, any wholly owned Government 
                        corporation, any Federal Reserve Bank, or any 
                        State or political subdivision thereof;
                            (ii) individuals employed by persons 
                        subject to the Railway Labor Act (45 U.S.C. 151 
                        et seq.); or
                            (iii) individuals employed as agricultural 
                        laborers.
            (13) Online communication platform activity.--The term 
        ``online communication platform activity'' means any activity 
        on an individual platform-based online communication account.
            (14) Precise geolocation information.--
                    (A) In general.--The term ``precise geolocation 
                information'' means information that is derived from a 
                device or technology that reveals the past or present 
                physical location of an individual or of a device that 
                identifies or is linked or reasonably linkable to 1 or 
                more individuals, with sufficient precision to identify 
                street level location information of the individual or 
                device or the location of the individual or device 
                within a range of 1,850 feet or less.
                    (B) Exclusion.--The term ``precise geolocation 
                information'' does not include information described in 
                subparagraph (A) identifiable or derived solely from 
                the visual content of a legally obtained image.
            (15) Service provider.--The term ``service provider'', with 
        respect to an employer, means a person that--
                    (A) collects, processes, conveys, or maintains data 
                with respect to such employer only at the direction of, 
                in accordance with the direction of, and pursuant to a 
                written contract with the employer (including any terms 
                of service or service agreements);
                    (B) does not earn revenue from such collection, 
                processing, conveyance, or maintenance of such data, 
                except from the employer by providing contracted 
                services to the employer with regard to such 
                collection, processing, conveyance, or maintenance of 
                such data; and
                    (C) does not combine or link data associated with 
                such employer with data associated with another 
                employer.
            (16) State.--The term ``State'' means each of the several 
        States of the United States, the District of Columbia, or any 
        territory or possession of the United States.
            (17) Technologist.--The term ``technologist'' means an 
        individual with experience in fields related to computational 
        technology, or the technology industry that produces 
        computational technology, such as advertising technology, 
        application development, artificial intelligence, computer 
        science, cybersecurity, data science, digital accessibility, 
        digital forensics, human-centered design, product management, 
        prototyping, service design, socio-technical systems, software 
        engineering, technology ethics, user experience, or privacy 
        rights, civil liberties, or civil rights related to technology.
            (18) Third party.--The term ``third party'', with respect 
        to an employer, means a person or entity--
                    (A) to which such employer transfers or is able to 
                transfer data, including any subsidiary or corporate 
                affiliate of such employer; and
                    (B) that is not--
                            (i) such employer;
                            (ii) a service provider of such employer 
                        with respect to the data being transferred; or
                            (iii) a government entity.
            (19) Transfer.--The term ``transfer'', with respect to 
        data, means releasing, sharing, leasing, disseminating, 
        disclosing, making available, or otherwise causing to be 
        communicated, such data--
                    (A) to a third party; or
                    (B) in the case of a third party that releases, 
                shares, leases, disseminates, discloses, makes 
                available, or otherwise causes to be communicated, such 
                data, to another person.
            (20) Tribal government.--The term ``Tribal government'' 
        means the recognized governing body of an Indian Tribe.
            (21) Worker.--The term ``worker'' includes an applicant.
            (22) Workplace surveillance.--The term ``workplace 
        surveillance'' means any collection (on- or off-duty) by an 
        employer of data with respect to a worker, including the 
        detection, monitoring, interception, collection, exploitation, 
        preservation, protection, transmission, or retention of data 
        concerning activities or communications with respect to the 
        worker, including through the use of a product, system or 
        service marketed, or that can be used, for such purposes, such 
        as a computer, software, telephone, wire, radio, camera, 
        sensor, electromagnetic, photoelectronic, handheld or wearable 
        device, adaptive computing, assistive technology, durable 
        medical equipment, or photo-optical system.

SEC. 3. WORKPLACE SURVEILLANCE AND TECHNOLOGIES TASK FORCE.

    (a) Establishment.--Not later than 180 days after the date of 
enactment of this Act, the President shall establish an interagency 
task force, which shall be known as the ``White House Task Force on 
Workplace Surveillance and Technologies'' (in this Act referred to as 
the ``Task Force'').
    (b) Membership.--
            (1) Composition.--The Task Force shall be comprised of--
                    (A) 2 members appointed by the President, of whom--
                            (i) 1 shall be a representative of the 
                        Department of Labor; and
                            (ii) 1 shall be a representative of the 
                        Office of Science and Technology Policy; and
                    (B) members who are representatives of--
                            (i) the Assistant Secretary of Labor for 
                        Occupational Safety and Health;
                            (ii) the Assistant Secretary of Labor for 
                        Disability Employment Policy;
                            (iii) the Administrator of the Wage and 
                        Hour Division of the Department of Labor;
                            (iv) the Secretary of Commerce;
                            (v) the Under Secretary of Commerce for 
                        Standards and Technology;
                            (vi) the Attorney General;
                            (vii) the Chair of the Federal Trade 
                        Commission;
                            (viii) the Chair of the National Labor 
                        Relations Board;
                            (ix) the Chair of the Equal Employment 
                        Opportunity Commission;
                            (x) the Administrator of the Small Business 
                        Administration;
                            (xi) the Director of the Domestic Policy 
                        Council;
                            (xii) the Director of the National 
                        Institute for Occupational Safety and Health;
                            (xiii) the Director of the Consumer 
                        Financial Protection Bureau;
                            (xiv) the United State Access Board; and
                            (xv) any other Federal agency designated by 
                        the President.
            (2) Chair.--The member appointed under paragraph (1)(A)(i) 
        shall service as the Chair of the Task Force.
            (3) Vice chair.--The member appointed under paragraph 
        (1)(A)(ii) shall service as the Vice Chair of the Task Force.
            (4) Period of appointment; vacancies.--
                    (A) In general.--A member of the Task Force shall 
                be appointed for the life of the Task Force.
                    (B) Vacancies.--A vacancy in the Task Force--
                            (i) shall not affect the powers of the Task 
                        Force; and
                            (ii) shall be filled in the same manner as 
                        the original appointment.
    (c) Meetings.--The Task Force shall meet not less than 4 times each 
year.
    (d) Subcommittees.--The Task Force may appoint subcommittees or 
other working groups composed of Task Force members appointed under 
subsection (b), or their representatives, as may be necessary to 
accomplish the duties described in section 4.

SEC. 4. DUTIES.

    (a) In General.--The Task Force shall study and evaluate the use of 
workplace surveillance by employers, including by studying--
            (1) the prevalence and types of workplace surveillance 
        across different industries;
            (2) how employers are collecting data via workplace 
        surveillance and are using, storing, securing, and transferring 
        such data, including--
                    (A) the types of data collected by workplace 
                surveillance;
                    (B) whether such data is provided by employers to a 
                third party or otherwise ends up in files maintained by 
                a third party; and
                    (C) information on any disclosures to workers by 
                employers of workplace surveillance used by the 
                employer, and any provisions made available to workers 
                to opt-out of such workplace surveillance;
            (3) the impact of workplace surveillance and the use of any 
        automated decision system on--
                    (A) worker compensation;
                    (B) worker performance reviews and subsequent 
                decisions related to such reviews;
                    (C) worker schedule policies;
                    (D) career advancement for workers;
                    (E) assignment of duties for workers;
                    (F) workplace safety, including with regard to 
                worker physical and mental health;
                    (G) health care and long-term care coverage for 
                workers;
                    (H) disciplinary or termination decisions for 
                workers;
                    (I) interviewing or hiring workers; and
                    (J) job quality;
            (4) the implications of workplace surveillance on worker 
        organizing efforts and labor organization membership;
            (5) the impact of workplace surveillance and the use of any 
        automated decision system on vulnerable populations, including 
        workers with disabilities, low-wage workers, workers of color, 
        older workers, and formerly incarcerated workers, and on gender 
        equity in the workplace;
            (6) the feasibility of requiring impact assessments for the 
        use of workplace surveillance or an automated decision system 
        with respect to certain employers or industries; and
            (7) third parties and service providers and their role in 
        workplace surveillance and the technology used for workplace 
        surveillance.
    (b) Consultation.--In carrying out the duties under subsection (a), 
the Task Force shall, to the extent necessary and appropriate, 
regularly consult with--
            (1) labor organizations;
            (2) relevant stakeholders in the private sector;
            (3) technologists and subject matter experts on--
                    (A) workplace surveillance;
                    (B) technology used for workplace surveillance;
                    (C) data;
                    (D) workplace safety and health; and
                    (E) the impact of workplace surveillance on 
                vulnerable populations, including workers with 
                disabilities, low-wage workers, workers of color, older 
                workers, and formerly incarcerated workers and on 
                gender equity in the workplace;
            (4) Federal agencies that are not represented on the Task 
        Force; and
            (5) representatives from allied or partner countries.
    (c) Reports.--
            (1) Initial report.--Not later than one year after the date 
        of enactment of this Act, the Task Force shall submit a report 
        to the Committee on Health, Education, Labor, and Pensions of 
        the Senate, and any other appropriate congressional committee, 
        that includes a comprehensive review of the prevalence of 
        workplace surveillance across different industries and how 
        employers are using, storing, securing, and transferring data 
        collected via workplace surveillance.
            (2) Interim report.--Not later than one year after the date 
        on which the report required by paragraph (1) is submitted, the 
        Task Force shall submit to the Committee on Health, Education, 
        Labor, and Pensions of the Senate, and any other appropriate 
        congressional committee, a report that includes findings on--
                    (A) the study described in subsection (a)(3) on the 
                impact of workplace surveillance and the use of any 
                automated decision system;
                    (B) the implications of workplace surveillance on 
                worker organizing efforts and labor organization 
                membership; and
                    (C) the effect of workplace surveillance and the 
                use of an automated decision system on vulnerable 
                populations, including workers with disabilities, low-
                wage workers, workers of color, older workers, and 
                formerly incarcerated workers, and on gender equity in 
                the workplace.
            (3) Final report.--Not later than one year after the date 
        on which the interim report required under paragraph (2) is 
        submitted, the Task Force shall submit to the Committee on 
        Health, Education, Labor, and Pensions of the Senate and any 
        other appropriate congressional committee, and make available 
        to the public on the website of the Executive Office of the 
        President, a final report that includes--
                    (A) recommendations to Federal agencies and such 
                committees about how to address workplace surveillance 
                and the technology used for workplace surveillance; and
                    (B) recommendations on how to conduct a government-
                wide coordinated strategy to address the rise of 
                workplace surveillance and the technology used for 
                workplace surveillance.

SEC. 5. TERMINATION OF TASK FORCE.

    (a) In General.--The Task Force shall terminate 60 days after the 
date on which the Task Force submits the report required under section 
4(c)(3).
    (b) Additional Actions.--During the 60-day period described in 
subsection (a), the Task Force may conclude any activities of the Task 
Force, including providing testimony to Congress concerning the final 
report submitted under section 4(c)(3).
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