Short title

This Act may be cited as the

No Robot Bosses Act

Definitions

For purposes of this Act:(1)

Adverse work action

The term adverse work action, with respect to a covered individual, means a change by the employer of the covered individual in the compensation, terms, conditions, or privileges of the job of the covered individual that puts the covered individual in a materially adverse position than prior to the change, including a termination, reduction in benefits, disciplinary action, demotion, transfer, imposition of a work schedule more burdensome to the covered individual, reduction of scheduled hours, adjustment in the ability for a promotion, or other modifications to the compensation, terms, conditions, or privileges of the job of the covered individual.(2)

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.(3)

Automated decision system

(A)

In general

The term automated decision system means any system, software, or process (including one derived from machine learning, statistics, or other data processing or artificial intelligence techniques and excluding passive computing infrastructure) that uses computation to produce a prediction, score, ranking, recommendation, decision, evaluation, metric, conclusion, inference, or profile.(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.(4)

Covered individual

The term covered individual, with respect to an employer, means an individual—(A)who is employed by, or otherwise performs work for remuneration for, the employer, including such an individual who is—(i)any individual performing work for remuneration for an employer described in clauses (i)(I) and (ii) of paragraph (9)(A);(ii)any individual performing work for remuneration for an entity described in clauses (i)(II) and (ii) of paragraph (9)(A);(iii)any individual performing work for remuneration for an employing office described in clauses (i)(III) and (ii) of paragraph (9)(A);(iv)any individual performing work for remuneration for an employing office described in clauses (i)(IV) and (ii) of paragraph (9)(A); or(v)any individual performing work for remuneration for an employing agency described in clauses (i)(V) and (ii) of paragraph (9)(A) who is not covered under clause (iv); or(B)who is an applicant with respect to the employer.(5)

Developer

(A)

In general

Except as provided in subparagraph (B), the term developer, with respect to an automated decision system that is intended or reasonably likely to be used by an employer to make a work-related decision, means any person that designs, codes, customizes, produces, or substantially modifies the automated decision system, including such a person that is the employer.(B)

Assumption of responsibility by employer

If an employer assumes the responsibility of a person that would otherwise be a developer of an automated decision system as described in section 5(b)(2)(B), the person shall not be considered a developer for purposes of the use by the employer of the automated decision system and the employer shall be considered a developer for such purposes.(C)

Rule of construction

Subparagraph (A) or (B) shall not be interpreted to mean that an employer may not also be a developer described in such subparagraph or that such a developer may not also be an employer.(6)

Director

The term Director means the Director of the Fairness and Transparency Office established under section 6.(7)

Disparate impact

(A)

In general

The term disparate impact means an unjustified differential effect on an individual or group of individuals on the basis of an actual or perceived protected characteristic.(B)

Unjustified differential effect

For purposes of subparagraph (A), with respect to the action, policy, or practice of an employer, a differential effect is unjustified if—(i)the developer or employer fails to demonstrate that such action, policy, or practice causing the differential effect is necessary to achieve a substantial, legitimate, and nondiscriminatory interest; or(ii)in the event the employer demonstrates such interest, an alternative action, policy, or practice could serve such interest with less differential effect.(C)

Application to automated decision system

With respect to demonstrating that an automated decision system causes or contributes to a differential effect, the automated decision system is presumed to be not separable for analysis and may be analyzed holistically as a single action, policy, or practice, unless the developer or employer proves that the automated decision system is separable by a preponderance of the evidence.(8)

Egregious misconduct

The term egregious misconduct, with respect to a covered individual, means deliberate or grossly negligent conduct that endangers the safety or well-being of the covered individual, co-workers of the covered individual, customers, or other persons, including discrimination against or harassment of co-workers, customers, or other persons.(9)

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 covered individuals;(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 or worker advocacy organization (other than when a labor organization or worker advocacy organization is acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization or worker advocacy 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).(10)

Government entity

The term government entity means—(A)a Federal agency (as such term is defined in section 3371 of title 5, United States Code);(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.(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 union 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)

Personal data

The term personal data—(A)means information that identifies or is linked or reasonably linkable, alone or in combination with other information, to an individual or an individual’s device; and(B)includes derived data and unique persistent identifiers.(14)

Predispute arbitration agreement

The term predispute arbitration agreement means any agreement to arbitrate a dispute that has not yet arisen at the time of the making of the agreement.(15)

Predispute joint-action waiver

The term predispute joint-action waiver means an agreement, whether or not part of a predispute arbitration agreement, that would prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum, concerning a dispute that has not yet arisen at the time of the making of the agreement.(16)

Protected characteristic

The term protected characteristic means any of the following actual or perceived traits of an individual or group of individuals:(A)Race.(B)Color.(C)Ethnicity.(D)National origin, nationality, or immigration status.(E)Religion.(F)Sex (including a sex stereotype, pregnancy, childbirth, or a related medical condition, sexual orientation or gender identity, and sex characteristics, including intersex traits).(G)Disability.(H)Limited English proficiency.(I)Biometric information.(J)Familial or marital status.(K)Source of income.(L)Income level (not including the ability to pay for a specific good or service being offered).(M)Age.(N)Veteran status.(O)Genetic information or medical conditions.(P)Any other classification protected by Federal law.(17)

Secretary

The term Secretary means the Secretary of Labor.(18)

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.(19)

State attorney general

The term State attorney general means—(A)with respect to a State, the attorney general or chief law enforcement officer of the State, or another official or agency designated by the State to bring civil actions on behalf of the State or the residents of the State; and(B)with respect to a Tribal government, the attorney general or chief law enforcement officer of the Tribal government, or another official or agency designated by the Tribal government to bring civil actions on behalf of the Tribal government or the Indian Tribe of the Tribal government.(20)

State privacy regulator

The term State privacy regulator means—(A)the chief consumer protection officer of a State; or(B)a State consumer protection agency with expertise in data protection, including the California Privacy Protection Agency.(21)

Tribal government

The term Tribal government means the recognized governing body of an Indian Tribe.(22)

Work-related decision

The term work-related decision includes a decision by an employer with regard to—(A)hiring or engaging a covered individual (including any decision with regard to recruiting, screening, interviewing, reviewing, or selecting an applicant);(B)firing, retaining, taking a disciplinary action against, demoting, deactivating, or reassigning duties of a covered individual; or(C)any other term, condition, or privilege of employment or other work of the covered individual, such as relating to wages, wage setting, work hours, scheduling, attendance requirements, workload, performance standards, assignment of work, access to work and training opportunities, productivity requirements, promotion, workplace health and safety, health care or long-term care coverage, or other benefits.

Use of an automated decision system by an employer

(a)

Work-Related decisions

(1)

In general

An employer— (A) may not rely predominantly on an automated decision system in making a work-related decision with respect to a covered individual; and (B) may not use an automated decision system in a manner that would— (i) prevent compliance with, or result in a violation of, any Federal, State, or local labor, occupational safety and health, employment, or civil rights law, including regulation; (ii) prevent compliance with any right of a covered individual to reasonable accommodations or nondiscrimination as required by Federal, State, or local law; or (iii) prevent or discourage a covered individual from exercising any right under the National Labor Relations Act (29 U.S.C. 151 et seq.) or any similar rights under any other Federal, State, or local law. (2)

Disclosures

(A)

In general

An employer that uses or intends to use an automated decision system in making a work-related decision with respect to a covered individual shall, in accordance with subparagraph (B), disclose to such covered individual— (i) that the employer uses or intends to use an automated decision system in making such a work-related decision; (ii) a description and explanation of the automated decision system, including— (I) the types of data collected or intended to be collected as inputs to the automated decision system and the circumstances of such collection; (II) the characteristics that the automated decision system measures or is intended to measure, such as the knowledge, skills, or abilities of the covered individual; (III) how such characteristics relate or would relate to any function required for the work or potential work of the covered individual; (IV) how the system measures or is intended to measure such characteristics; (V) any performance standards or metrics used as inputs or produced as outputs of the automated decision system; and (VI) how the covered individual can interpret the output of such automated decision system in plain language; (iii) the identity of the individual or entity that operates the automated decision system; (iv) how the employer uses or intends to use such an automated decision system in making such a work-related decision; (v) how the covered individual may dispute or appeal a work-related decision made with respect to the covered individual using an automated decision system; and (vi) the trade name of the automated decision system. (B)

Timing of disclosures

(i)

Disclosures with regard to hiring and processing applications

(I)

In general

An employer shall provide a disclosure required under subparagraph (A) to the covered individual— (aa) in the case of a covered individual for whom a work-related decision with regard to the hiring of the covered individual— (AA) was made on or after the date that is 5 years prior to the date of enactment of this Act, but before such date of enactment, not later than 30 days after such date of enactment; or (BB) except as provided in item (bb), is made on or after the date of enactment of this Act, prior to making such work-related decision; and (bb) in the case of an applicant who applies to the employer on or after the date of enactment of this Act, prior to processing an application by the applicant to be employed by, or otherwise perform work for remuneration for, the employer. (II)

Employers needing information for prior work-related decisions

With respect to a disclosure described in subclause (I)(aa)(AA), in the case of an employer that did not maintain, prior to the date of enactment of this Act, all of the information described in subparagraph (A) required for such a disclosure, the employer shall— (aa) provide the disclosure in accordance with this paragraph with respect to as much information described in subparagraph (A) as the employer did maintain; and (bb) inform the covered individual in accordance with such subclause that the employer did not maintain records of the other information required under such subparagraph. (ii)

Other disclosures

(I)

In general

With respect to any work-related decision not described in clause (i) that is made on or after the date of enactment of this Act, an employer shall provide the disclosure required under subparagraph (A) prior to making such work-related decision. (II)

Adverse work actions

Notwithstanding subclause (I), in the case the work-related decision described in such subclause is for an adverse work action against the covered individual, the disclosure described in such subclause shall be required at least 7 days prior to taking the adverse work action. (iii)

Updated disclosures

With respect to a covered individual for whom an employer provided a disclosure under subparagraph (A), the employer shall provide the covered individual with an updated disclosure— (I) not less than 7 days before implementing changes to practices disclosed under clause (ii) or (iv) of subparagraph (A); or (II) immediately upon significant new information required to be provided in such a disclosure becoming available. (C)

Exceptions

(i)

In general

Notwithstanding any provision in this paragraph, no disclosure is required under this paragraph for any work-related decision made prior to the date of enactment of this Act, except for such a decision with regard to the hiring of a covered individual that is made not prior to the date that is 5 years before the date of enactment of this Act as described in subparagraph (B)(i)(I)(aa)(AA). (ii)

Egregious misconduct

Notwithstanding any provision in this paragraph, in the case a covered individual engages in egregious misconduct, an employer may issue a disclosure under this paragraph for a work-related decision made by the employer with respect to such egregious misconduct after the employer makes such work-related decision. (3)

Training

An employer that uses or intends to use an automated decision system in making a work-related decision with respect to a covered individual shall train any individual or entity that operates the automated decision system on the use of such system, including on— (A) the input information used by such automated decision system; (B) the appeals process for the output of such an automated decision system; (C) potential biases in automated decision systems; (D) any limitations of the automated decision system, including intended use cases, known performance issues outside of those use cases, and proper interpretation of outputs; (E) any potential adverse effects to covered individuals due to the automated decision system; (F) any potential errors or problems related to the automated decision system; and (G) examples of inappropriate uses of the automated decision system, such as misinterpretation of outputs or exclusive reliance on outputs to make a decision. (b)

Management by an automated decision system

An employer that manages a covered individual through an automated decision system shall enable the covered individual to opt out of such management and instead be managed through a human manager who is able to make work-related decisions with respect to the covered individual. (c)

Applicant opt out

An employer shall enable applicants to opt out of having application materials screened, reviewed, or processed by an automated decision system and instead be screened, reviewed, or processed by a human, including in cases in which the employer engages a third party to screen, review, or process application materials.

Predeployment evaluations and post-deployment impact assessments

(a)

Predeployment evaluations

(1)

For developers

Before a developer deploys, licenses, or offers an automated decision system (including deploying a material change to a previously deployed automated decision system or a material change made prior to deployment) that is intended or reasonably likely to be used to make a work-related decision, the developer of the automated decision system shall conduct a predeployment evaluation that—(A)includes a detailed review of the automated decision system; and(B)results in a report, sufficient for an individual having ordinary skill in the art to understand the functioning, risks, uses, benefits, limitations, and other pertinent attributes of the automated decision system, that includes—(i)a description of the automated decision system’s design and methodology, including the inputs the automated decision system is designed to use to produce an output and the outputs the automated decision system is designed to produce for purposes of specific work-related decisions;(ii)a description of how the automated decision system was created and tested, including—(I)any metric used to test the performance of the automated decision system;(II)defined benchmarks and goals that correspond to such metrics, including whether there was sufficient representation of demographic groups that are reasonably likely to use or be affected by the automated decision system in the data used to create or train the automated decision system, and whether there was reasonable testing, if any, across such demographic groups;(III)the outputs the automated decision system actually produces in testing;(IV)a description of any consultation with relevant stakeholders, including covered individuals that will be impacted by the automated decision system, regarding the development of the automated decision system or a disclosure that no such consultation occurred;(V)any computational algorithm incorporated into the development of the automated decision system and a description of the training process for such algorithm including the training, validation, and test data used to confirm the intended outputs; and(VI)a description of the data and information used to develop, test, maintain, or update the automated decision system, including—(aa)each type of personal data used, each source from which the personal data was collected, and how each type of personal data was inferred and processed;(bb)the legal authorization for collecting and processing the personal data; and(cc)an explanation of how the data (including personal data) used is representative, proportional, and appropriate to the development and intended uses of the automated decision system;(iii)a description of— (I) the potential for the automated decision system to pose risks to workers' rights, including with respect to the privacy, physical and mental health and safety, dignity, and autonomy of workers or to result in the chilling of legally protected activity (including organizing and collective bargaining); and (II)any potential economic impact of the automated decision system on workers, such as with respect to wages, hours, schedules, benefits, skills training, work opportunities, and advancement;(iv)a description of the potential for the automated decision system to discriminate, including by having a disparate impact on the equal enjoyment of goods, services, or other activities or opportunities, and a description of such discrimination; and (v) a description of alternative practices and recommendations to prevent or mitigate risks to workers' rights and recommendations for how the developer could monitor for risks to workers' rights after offering, licensing, or deploying the automated decision system. (2)

For employers

Before an employer deploys an automated decision system (including deploying a material change to a previously deployed automated decision system or a material change made prior to deployment) that is intended or reasonably likely to be used to make a work-related decision, the employer shall conduct a predeployment evaluation that—(A)includes a detailed review of the automated decision system; and(B)results in a report, sufficient for an individual having ordinary skill in the art to understand the functioning, risks, uses, benefits, limitations, and other pertinent attributes of the automated decision system, that includes—(i)a description of the manner in which the automated decision system may be used to make or contribute to a work-related decision and the purpose for which the automated decision system will be deployed;(ii)a description of the necessity and proportionality of the automated decision system in relation to its planned use, including the intended benefits and limitations of the automated decision system and a description of the baseline process being enhanced or replaced by the automated decision system, if applicable;(iii)a description of the inputs to the automated decision system that the employer plans to use to produce an output, including—(I)the type of personal data and information used and how the personal data and information will be collected, inferred, and processed;(II)the legal authorization for collecting and processing the personal data; and(III)an explanation of how the data used is representative, proportional, and appropriate to the deployment of the automated decision system;(iv)a description of the outputs the automated decision system is expected to produce and the outputs the automated decision system actually produces in testing;(v)a description of any additional testing or training completed by the employer for the context in which the automated decision system will be deployed;(vi)a description of any consultation with relevant stakeholders, including covered individuals that will be impacted by the automated decision system, regarding the deployment of the automated decision system;(vii)a description of— (I) the potential for the automated decision system to pose risks to workers' rights, including with respect to the privacy, physical and mental health and safety, dignity, and autonomy of workers or to result in the chilling of legally protected activity (including organizing and collective bargaining); and (II)any potential economic impact of the automated decision system on workers, such as with respect to wages, hours, schedules, benefits, skills training, work opportunities, and advancement;(viii)a description of the potential for the automated decision system to discriminate, including by having a disparate impact on the equal enjoyment of goods, services, or other activities or opportunities, and a description of such discrimination; and (ix) a description of alternative practices and recommendations to prevent or mitigate risks to workers' rights and recommendations for how the employer could monitor for risks to workers' rights after offering, licensing, or deploying the automated decision system. (3)

Effective date

The requirements for predeployment evaluations under paragraphs (1) and (2) shall only apply with respect to the deployment, licensing, or offering of any automated decision system that occurs on or after the date of enactment of this Act.(b)

Employer annual impact assessment

An employer that deploys an automated decision system used to make a work-related decision in any year shall conduct an impact assessment of the automated decision system with respect to the use of such system in such year in accordance with the following:(1)

Impact assessment

The employer shall—(A)conduct a full impact assessment on the automated decision system with respect to the year, including the information described in paragraph (2) as relevant; and(B)prepare a report on such assessment, including—(i)a description of the extent to which the automated system during the year infringed on the rights of any worker, including with respect to the privacy, physical and mental health and safety, dignity, and autonomy of workers or to result in the chilling of legally protected activity (including organizing and collective bargaining), or had an economic impact on any worker, such as with respect to wages, hours, schedules, benefits, skills training, work opportunities, and advancement;(ii)a description of the extent to which the automated decision system produced a disparate impact in the equal enjoyment of goods, services, or other activities or opportunities, including the methodology for such evaluation, of how the automated decision system produced or likely produced such disparity;(iii)a description of the types of data input into the automated decision system during the reporting period to produce an output, including—(I)documentation of how data input into the automated decision system to produce an output is represented and complete descriptions of each field of data; and(II)whether and to what extent the data input into the automated decision system to produce an output was used to modify the automated decision system;(iv)whether and to what extent the automated decision system produced the outputs it was expected to produce; and(v)a detailed description of how the automated decision system was used to make a work-related decision.(2)

Employers with a deployed automated decision system

An employer that deployed an automated decision system used to make a work-related decision before the date of enactment of this Act and has not otherwise conducted a predeployment evaluation under subsection (a) or a review under this paragraph with respect to the automated decision system shall—(A)conduct a detailed review of the automated decision system; and(B)include in the first impact assessment of such automated decision system under paragraph (1) a report, sufficient for an individual having ordinary skill in the art to understand the functioning, risks, uses, benefits, limitations, and other pertinent attributes of the automated decision system, that includes—(i)a description of the manner in which the automated decision system may be used to make or contribute to a work-related decision and the purpose for which the automated decision system will be deployed;(ii)a description of the necessity and proportionality of the automated decision system in relation to its planned use, including the intended benefits and limitations of the automated decision system and a description of the baseline process being enhanced or replaced by the automated decision system, if applicable; and(iii)a description of the inputs to the automated decision system that the employer plans to use to produce an output, including—(I)the type of personal data and information used and how the personal data and information will be collected, inferred, and processed;(II)the legal authorization for collecting and processing the personal data; and(III)an explanation of how the data used is representative, proportional, and appropriate to the deployment of the automated decision system.(3)

Report

Not later than 30 days after the completion of a report on an impact assessment under paragraph (1)(B), an employer shall submit to the developer of the automated decision system a summary of such report.(c)

Developer annual review of assessments

A developer of an automated decision system used by an employer in any year to make a work-related decision shall review each impact assessment summary submitted by an employer under subsection (b)(3) with respect to such system in such year for the following:(1)To assess how the employer is using the automated decision system, including the methodology for assessing such use.(2)To assess the type of data the employer is inputting into the automated decision system to produce an output and the types of outputs the automated decision system is producing.(3)To assess whether the employer is complying with any relevant contractual agreement with the developer and whether any remedial action is necessary.(4)To compare the automated decision system’s performance in real-world conditions versus any predeployment testing available, including the methodology used to evaluate such performance. (5) To assess whether the automated decision system infringed on workers' rights or is reasonably likely to be infringing on workers' rights. (6)To assess whether and, if so, how the automated decision system is causing, or is reasonably likely to be causing, a disparate impact in the equal enjoyment of goods, services, or other activities or opportunities.(7)To determine whether the automated decision system needs modification.(8)To determine whether any other action is appropriate to ensure that the automated decision system remains safe and effective.(d)

Joint developer and employer obligations

If a person is both the developer of an automated decision system and an employer deploying an automated decision system, the person may conduct combined predeployment evaluations and annual assessments, provided that each combined evaluation or assessment satisfies all requirements for both developers and employers.(e)

Relationships between developers and employer

The developer of an automated decision system shall, upon the reasonable request of an employer using the automated decision system, make available to the employer information necessary for the employer to demonstrate compliance with the requirements of this Act, including—(1)making available to the employer a report on the predeployment evaluation required under subsection (a) or the annual review of assessments conducted by the developer under subsection (c); and(2)providing information necessary to enable the employer to conduct and document a predeployment evaluation under subsection (a) or an impact assessment under subsection (b).(f)

Reporting and retention requirements

(1)

Reporting

A developer or employer that conducts a predeployment evaluation, impact assessment, or developer annual review of assessments under this section shall—(A)not later than 30 days after completion of such evaluation, assessment, or review, submit the evaluation, assessment, or review to the Fairness and Transparency Office of the Department of Labor;(B)upon request, make the completed evaluation, assessment, or review available to Congress; and(C)not later than 30 days after such completion—(i)publish a summary of the evaluation, assessment, or review on the website of the developer or employer in a manner that is easily accessible to individuals; and(ii)submit such summary to the Fairness and Transparency Office of the Department of Labor.(2)

Retention

A developer or employer shall retain all evaluations, assessments, and reviews conducted under this section for a period of not fewer than 10 years after the completion of the evaluation, assessment, or review.(3)

Trade secrets and privacy

A developer or employer—(A)may redact and segregate any trade secret (as defined in section 1839 of title 18, United States Code) from public disclosure in the summary published and submitted under paragraph (1)(C); and(B)shall redact and segregate personal data from public disclosure in such summary.(g)

Rulemaking

(1)

Authority

The Director of the Fairness and Transparency Office of the Department of Labor may, in accordance with section 553 of title 5, United States Code, promulgate such rules as may be necessary to carry out this section.(2)

Additional regulations

Not later than 2 years after the date of enactment of this Act, the Director of the Fairness and Transparency Office shall—(A)promulgate rules, pursuant to section 553 of title 5, United States Code, specifying—(i)what information and factors a developer or employer shall consider in making the predeployment evaluation required under subsection (a);(ii)what information a developer or employer shall include in a summary of an evaluation, assessment, or review described in subsection (f)(1)(C); and(iii)the extent to and process by which a developer may request additional information from a employer for purposes of the review under subsection (c), including the purposes for which a developer is permitted to use such additional information; and(B)in promulgating such rules, consider the need to protect the privacy of personal data, as well as the need for information sharing by developers and employers to comply with this section and inform the public.

Automated decision system standards

(a)

Automated decision system use

A developer of an automated decision system that is intended or reasonably likely to be used to make a work-related decision and each employer using such automated decision system shall— (1) take reasonable measures to prevent and mitigate any risks to workers' rights from the automated decision system that are identified by a predeployment evaluation under section 4(a) or an impact assessment under section 4(b); (2)consult stakeholders, including stakeholders representing any community that will be impacted by the automated decision system, regarding the development or deployment of the automated decision system; and(3)certify to the Director before deploying, licensing, or offering the automated decision system that, based on the results of the predeployment evaluation under section 4(a) or an impact assessment under section 4(b), use of the automated decision system is not likely to result in—(A)risk to workers’ rights, including with respect to the privacy, physical and mental health and safety, dignity, and autonomy of workers; or(B)the chilling of legally protected activity (including with respect to organizing and collective bargaining). (b)

Off-Label use

(1)

Developers

A developer of an automated decision system may not knowingly offer or license the automated decision system for use in producing outputs for purposes of any work-related decision other than those described in the predeployment evaluation under section 4(a). (2)

Employers

(A)

In general

Except as provided in subparagraph (B), an employer may not knowingly use an automated decision system to produce outputs for purposes of a work-related decision other than for purposes of a work-related decision that is described in the predeployment evaluation under such section by the developer of the automated decision system. (B)

Assumption of responsibility

An employer that intends to use an automated decision system to produce an output for purposes of a work-related decision that is not described in the predeployment evaluation under such section by the developer of the automated decision system shall assume the responsibilities of the developer required by this Act (other than with respect to conducting a review of assessments under section 4(c)) with respect to the use by the employer of the automated decision system.

Establishment of Fairness and Transparency Office

(a)

In general

There is established in the Wage and Hour Division of the Department of Labor the Fairness and Transparency Office.(b)

Director

The President shall appoint a Director of the Fairness and Transparency Office to head the Fairness and Transparency Office.(c)

Employees and advisory boards of the Office

(1)

In general

The Director—(A)may select, appoint, and employ, without regard to the provisions of sections 3309 through 3318 of title 5, United States Code, individuals, including technologists, directly to positions in the competitive service, as defined in section 2102 of such title, to carry out the duties of the Director under this Act; and(B)may fix the compensation of the individuals described in subparagraph (A) without regard to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for such individuals may not exceed the rate payable for level V of the Executive Schedule under section 5316 of that title.(2)

Advisory boards

(A)

Establishment

The Director shall establish advisory boards to advise and consult with in the exercise of the functions of the Director under this Act and to provide information on emerging practices relating to the treatment of data by employers that are the following:(i)The User Advisory Board, which shall be comprised of experts in consumer protection, privacy, civil rights, disability rights, labor organizations and worker advocacy organizations, and ethics.(ii)The Research Advisory Board, which shall be comprised of—(I)individuals with academic and research expertise in privacy, cybersecurity, computer science, innovation, design, ethics, economics, civil rights law, disability law, labor organizations and worker advocacy organizations, and public policy; and(II)representatives of labor organizations and worker advocacy organizations.(iii)The Product Advisory Board, which shall be comprised of technologists, computer scientists, designers, product managers, attorneys, representatives of labor organizations and worker advocacy organizations, workplace technology experts, accessibility experts, and other representatives of employers and workers.(iv)The Labor Advisory Board, which shall be comprised of—(I)representatives of labor organizations and worker advocacy organizations; and(II)representatives of workers.(B)

Appointments

The Director shall appoint members to the advisory boards established under subparagraph (A) without regard to party affiliation.(C)

Meetings

Each advisory board established under subparagraph (A) shall meet—(i)at the call of the Director; and(ii)not less than 2 times annually.(D)

Compensation and travel expenses

A member of an advisory board established under subparagraph (A) who is not an officer or employee of the Federal Government shall—(i)be entitled to receive compensation at a rate fixed by the Director while attending meetings of the advisory board, including travel time; and(ii)receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code.(E)

Exemption from the Federal Advisory Committee Act

Each advisory board established under subparagraph (A) shall be exempt from chapter 10 of title 5, United States Code.(3)

Use of voluntary services

The Director may, as may from time to time be needed, use any voluntary or uncompensated services.(4)

Attorneys

Attorneys appointed under this subsection may appear for and represent the Director in any litigation.(d)

Offices

(1)

In general

The principal office of the Fairness and Transparency Office shall be in the District of Columbia. (2)

Regional, local, and other offices

The Director may establish regional, local, or other offices, including an office in the city of San Francisco, California, or the San Francisco Bay area in California.

Regulations

(a)

In general

(1)

Authority

(A)

In general

Except as provided in paragraph (2), the Secretary, acting through the Director, may prescribe such regulations as may be necessary to carry out this Act with respect to covered individuals described in section 2(4)(A) (other than covered individuals described in clauses (iii) through (v) of such section) and other individuals affected by employers described in subclause (I) or (II) of section 2(9)(A)(i), including individuals who are covered individuals described in section 2(4)(B) with respect to such employers.(B)

Consultation

In prescribing any regulations authorized under this paragraph, the Secretary, acting through the Director, may consult with—(i)Federal agencies that have jurisdiction over Federal privacy laws or expertise in privacy, including the Federal Trade Commission;(ii)Federal agencies that have jurisdiction over labor and employment issues, including the Equal Employment Opportunity Commission, the National Science Foundation, and the National Labor Relations Board; and(iii)any other Federal agencies with relevant expertise, including the United States Access Board and the Office of Science and Technology Policy.(2)

Government accountability office; library of congress

The Comptroller General of the United States and the Librarian of Congress shall prescribe any regulations described in paragraph (1)(A) with respect to covered individuals of the Government Accountability Office and the Library of Congress, respectively, and other individuals affected by the Comptroller General of the United States and the Librarian of Congress, respectively.(b)

Individuals covered by Congressional Accountability Act of 1995

(1)

Authority

Not later than 45 days after the Secretary prescribes any regulation under subsection (a)(1)(A), the Board of Directors of the Office of Compliance shall prescribe (in accordance with section 304 of the Congressional Accountability Act of 1995 (2 U.S.C. 1384)) such regulations as may be necessary to carry out this Act with respect to covered individuals described in section 2(4)(A)(iii) and other individuals affected by employers described in section 2(9)(A)(i)(III), including individuals who are covered individuals described in section 2(4)(B) with respect to such employers.(2)

Agency regulations

The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary under subsection (a)(1)(A) except insofar as the Board may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section.(c)

Individuals covered by chapter 5 of title 3, United States Code

(1)

Authority

Not later than 45 days after the Secretary prescribes any regulation under subsection (a)(1)(A), the President (or the designee of the President) shall prescribe such regulations as may be necessary to carry out this Act with respect to covered individuals described in section 2(4)(A)(iv) and other individuals affected by employers described in section 2(9)(A)(i)(IV), including individuals who are covered individuals described in section 2(4)(B) with respect to such employers.(2)

Agency regulations

The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary under subsection (a)(1)(A) except insofar as the President (or designee) may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section.(d)

Individuals covered by chapter 63 of title 5, United States Code

(1)

Authority

Not later than 45 days after the Secretary prescribes any regulation under subsection (a)(1)(A), the Director of the Office of Personnel Management shall prescribe such regulations as may be necessary to carry out this Act with respect to covered individuals described in section 2(4)(A)(v) and other individuals affected by employers described in section 2(9)(A)(i)(V), including individuals who are covered individuals described in section 2(4)(B) with respect to such employers.(2)

Agency regulations

The regulations prescribed under paragraph (1) shall be the same as substantive regulations promulgated by the Secretary under subsection (a)(1)(A) except insofar as the Director may determine, for good cause shown and stated together with the regulations prescribed under paragraph (1), that a modification of such regulations would be more effective for the implementation of the rights and protections involved under this section.

Whistleblower protections

An employer may not discriminate or retaliate (including through intimidation, threats, coercion, or harassment) against any covered individual of the employer—(1)for exercising, or attempting to exercise, any right provided under this Act; or(2)because the covered individual (or another individual acting at the request of the covered individual) has—(A)made a written or oral complaint to the employer or a Federal, State, or local government entity of a violation of section 3;(B)sought assistance or intervention with respect to a worker privacy-related concern from the employer, a Federal, State, or local government, or a worker representative;(C)instituted, caused to be instituted, or otherwise participated in any inquiry or proceeding under or related to this Act;(D)given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this Act;(E)testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this Act; or(F)refused to follow the output of an automated decision system when exercising professional judgement.

Enforcement

(a)

In general

(1)

Definition

Notwithstanding section 2, for purposes of this subsection:(A)

Covered individual

The term covered individual means a covered individual—(i)described in section 2(4)(A) (other than covered individuals described in clauses (iii) through (v) of such section); or(ii)described in section 2(4)(B) with respect to an employer.(B)

Employer

The term employer means an employer described in subclause (I) or (II) of section 2(9)(A)(i).(2)

Enforcement by the Fairness and Transparency Office

(A)

Investigation

(i)

In general

To ensure compliance with the provisions of this Act, or any regulation or order issued under this Act, the Secretary, acting through the Director—(I)may investigate and gather data regarding the wages, hours, and other conditions and practices of employment (and other work) in any industry subject to this Act, and may enter and inspect any place or record (and make such transcriptions thereof), question any covered individual, and investigate any facts, conditions, practices, or matters as the Secretary may deem necessary or appropriate to determine whether an employer has violated any provision of this Act, or which may aid in the enforcement of the provisions of this Act; and(II)may require, by general or special orders, an employer, to file with the Secretary, in such form as the Secretary may prescribe, annual or special reports or answers in writing to specific questions, furnishing to the Secretary such information or records as the Secretary may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals, of the employer.(ii)

Reports and answers

An employer shall file the reports and answers (including information and records) required under clause (i)(II) in such manner, including under oath or otherwise, and within such reasonable time period as the Secretary may require.(iii)

Joint investigations

The Secretary, acting through the Director, may conduct investigations and make requests for information, as authorized under this Act, on a joint basis with another Federal agency, a State attorney general, or a State agency.(iv)

Obligation to keep, preserve, and make available records

An employer shall make, keep, preserve, and make available to the Secretary records pertaining to compliance with this Act in accordance with section 11(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(c)) and in accordance with any regulation or order issued by the Secretary.(B)

Enforcement

With respect to employers and covered individuals, the Secretary, acting through the Director, shall receive, investigate, and attempt to resolve complaints of violations of section 3, 4, 5, or 8 in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207).(C)

Referral for criminal proceedings

If the Secretary, in the course of the performance of any act or duty under this Act, obtains evidence that any employer has engaged in conduct that may constitute a violation of Federal criminal law, the Secretary shall refer the matter to the Attorney General for prosecution under any applicable law. Nothing in this paragraph shall affect any other authority of the Secretary to disclose information.(D)

Litigation

The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this subsection.(3)

Private right of action

(A)

In general

(i)

Covered individuals

Notwithstanding any action by the Secretary under paragraph (2)(B), any covered individual adversely affected by an alleged violation of section 3, 4, 5, or 8, may commence a civil action against any person that violates such section in any Federal court of competent jurisdiction.(ii)

Labor organizations and worker advocacy organizations

Notwithstanding any action by the Secretary under paragraph (2)(B), any labor organization or worker advocacy organization may, on behalf of a covered individual adversely affected by an alleged violation of section 3, 4, 5, or 8, commence a civil action against any person that violates such section in any Federal court of competent jurisdiction.(B)

Relief

(i)

In general

In a civil action brought under subparagraph (A) in which the covered individual, labor organization, or worker advocacy organization prevails, the court may award the covered individual, labor organization, or worker advocacy organization— (I) damages of an amount equal to the sum of any actual damages sustained by the covered individual; or (II)statutory damages described in clause (iv);(III)injunctive relief; and(IV)equitable relief.(ii)

Attorney's fees

In a civil action brought under subparagraph (A) in which the covered individual, labor organization, or worker advocacy organization prevails, the court shall award the covered individual, labor organization, or worker advocacy organization reasonable attorney's fees and litigation costs.(iii)

Temporary relief for whistleblowers

In a civil action brought under subparagraph (A) regarding a violation of section 8, the court may award the covered individual, labor organization, or worker advocacy organization temporary relief while the case is pending, including reinstatement.(iv)

Statutory damages

The court may, in accordance with clause (v), award statutory damages under clause (i)(II) against a person in the following amounts:(I)

Using an automated decision system for prohibited activities

For each violation of section 3 by an employer with respect to a covered individual, the court may, subject to clause (vi), award—(aa)damages of an amount not less than $5,000 and not more than $20,000; or(bb)for any willful or repeated violation by the employer, damages of an amount not less than $10,000 and not more than $40,000.(II)

Retaliation on whistleblowers

For each violation of section 8, the court may, subject to clause (vi), award—(aa)damages of an amount not less than $5,000 and not more than $50,000; or(bb)for any willful or repeated violation, damages of an amount not less than $10,000 and not more than $100,000.(v)

Considerations for statutory damages

In determining the amount of statutory damages assessed under clause (iv), the court shall consider any relevant circumstances presented by the parties to the action, including—(I)the nature and seriousness of the violation;(II)the number of violations;(III)the persistence of the misconduct;(IV)the length of time over which the misconduct occurred;(V)the willfulness of the misconduct of the employer; and(VI)the assets, liabilities, and net worth of the employer.(vi)

Adjustment for inflation

The dollar amounts referred to subclauses (I) and (II) of clause (iv) shall be increased annually, for fiscal year 2027 and every fiscal year thereafter, by the percent increase, if any, in the consumer price index for all urban consumers for the most recent 12-month period for which applicable data is available.(C)

Remedies for State workers

(i)

Waiver of sovereign immunity

A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution of the United States or otherwise, to a suit brought by a covered individual of that program or activity, or a labor organization or worker advocacy organization on behalf of such a covered individual, under this paragraph for equitable, legal, or other relief authorized under this paragraph. (ii)

Official capacity

An official of a State may be sued in the official capacity of the official by any covered individual, or such a labor organization or worker advocacy organization, who has complied with the procedures under this paragraph, for injunctive relief that is authorized under this paragraph. In such a suit, the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes (42 U.S.C. 1988).(iii)

Applicability

With respect to a particular program or activity, clause (i) applies to conduct that occurs—(I)after the date of enactment of this Act; and(II)on or after the day on which a State first receives or uses Federal financial assistance for that program or activity.(iv)

Definition of program or activity

In this subparagraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a).(D)

Remedies for Tribal government workers

(i)

Waiver of sovereign immunity

A Tribal government's receipt or use of Federal financial assistance for any program or activity of the Tribal government shall constitute a waiver of sovereign immunity to a suit brought by a covered individual of that program or activity, or a labor organization or worker advocacy organization on behalf of such a covered individual, under this paragraph for equitable, legal, or other relief authorized under this paragraph.(ii)

Official capacity

An official of a Tribal government may be sued in the official capacity of the official by any covered individual, or such a labor organization or worker advocacy organization, who has complied with the procedures under this paragraph for injunctive relief that is authorized under this paragraph. In such a suit, the court may award to the prevailing party those costs authorized by section 722 of the Revised Statutes (42 U.S.C. 1988).(iii)

Applicability

With respect to a particular program or activity, clause (i) applies to conduct that occurs—(I)after the date of enactment of this Act; and(II)on or after the day on which a Tribal government first receives or uses Federal financial assistance for that program or activity.(iv)

Definition of program or activity

In this subparagraph, the term program or activity has the meaning given the term in section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d–4a).(4)

Enforcement by the Government Accountability Office and Library of Congress

Notwithstanding any other provision of this subsection, in the case of the Government Accountability Office and the Library of Congress, the authority of the Secretary under this subsection shall be exercised respectively by the Comptroller General of the United States and the Librarian of Congress, respectively.(b)

Individuals covered by Congressional Accountability Act of 1995

The powers, remedies, and procedures provided in the Congressional Accountability Act of 1995 (2 U.S.C. 1301 et seq.) to the Board (as defined in section 101 of that Act (2 U.S.C. 1301)), or any person, alleging a violation of section 202(a)(1) of that Act (2 U.S.C. 1312(a)(1)), shall be the powers, remedies, and procedures this Act provides to that Board, or any person, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(4)(A)(iii) or described in section 2(4)(B) with respect to an employer described in section 2(9)(A)(i)(III).(c)

Individuals covered by chapter 5 of title 3, United States Code

The powers, remedies, and procedures provided in chapter 5 of title 3, United States Code, to the President, the Merit Systems Protection Board, or any person, alleging a violation of section 412(a)(1) of that title, shall be the powers, remedies, and procedures this Act provides to the President, that Board, or any person, respectively, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(4)(A)(iv) or described in section 2(4)(B) with respect to an employer described in section 2(9)(A)(i)(IV).(d)

Individuals covered by chapter 63 of title 5, United States Code

The powers, remedies, and procedures provided in title 5, United States Code, to an employing agency, provided in chapter 12 of that title to the Merit Systems Protection Board, or provided in that title to any person, alleging a violation of chapter 63 of that title, shall be the powers, remedies, and procedures this Act provides to that agency, that Board, or any person, respectively, with regard to an allegation of a violation of section 3, 4, 5, or 8 against a covered individual described in section 2(4)(A)(v) or described in section 2(4)(B) with respect to an employer described in section 2(9)(A)(i)(V).(e)

Enforcement by States

(1)

In general

In any case in which a State attorney general or a State privacy regulator has reason to believe that an interest of the residents of a State has been or is adversely affected by any person who violates any provision of section 3, 4, 5, or 8, including a regulation or order prescribed under this Act, the State attorney general or State privacy regulator, as parens patriae, may bring a civil action on behalf of the residents of the State in an appropriate State court or an appropriate district court of the United States to—(A)enjoin further violation of such provision by the person;(B)compel compliance with such provision;(C)obtain damages (including statutory damages described in paragraph (4)), civil penalties, restitution, or other compensation on behalf of the residents of the State; or(D)obtain reasonable attorney's fees and other litigation costs reasonably incurred.(2)

Rights of agency

Before initiating a civil action under paragraph (1), the State attorney general or State privacy regulator, as the case may be, shall notify the Secretary in writing of such civil action. Upon receiving such notice, the Secretary may—(A)intervene in such action; and(B)upon intervening—(i)be heard on all matters arising in such civil action; and(ii)file petitions for appeal of a decision in such action.(3)

Preemptive action by agency

In any case in which a civil action is instituted by or on behalf of the Secretary for a violation of this Act, including a regulation promulgated under this Act, a State attorney general or State privacy regulator may not, during the pendency of such action, institute a civil action against any defendant named in the complaint in the action instituted by or on behalf of the Secretary for a violation that is alleged in such complaint. In a case brought by the Secretary that affects the interests of a State, the State attorney general or State privacy regulator may intervene as of right pursuant to the Federal Rules of Civil Procedure.(4)

Statutory damages

In a civil action instituted under paragraph (1), a court may award statutory damages under paragraph (1)(C) against a person for a violation of any provision of section 3, 4, 5, or 8—(A)in an amount not more than $50,000 for each such violation; or(B)in the case of such a violation that results in the discharge of a covered individual or other serious economic harm to a covered individual by such a person who has, within the preceding 5 years, committed another such violation resulting in such a discharge or other serious economic harm, not more than $100,000 for each such violation.(5)

Preservation of State powers

Except as provided in paragraph (3), no provision of this subsection shall be construed as altering, limiting, or affecting the authority of a State attorney general or State privacy regulator to—(A)bring an action or other regulatory proceeding arising solely under the laws in effect in that State; or(B)exercise the powers conferred on the State attorney general or State privacy regulator by the laws of the State, including the ability to conduct investigations, administer oaths or affirmations, or compel the attendance of witnesses or the production of documentary or other evidence.(f)

Arbitration and class action

(1)

In general

Notwithstanding any other provision of law, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to any alleged violation of section 3, 4, 5, or 8.(2)

Arbitration pursuant to a collective bargaining agreement

Nothing in this subsection shall limit the enforceability of any arbitration provision in a collective bargaining agreement between an employer and a labor organization or worker advocacy organization.

10.

Coordination

In carrying out this Act, the Secretary, acting through the Director, shall coordinate with any appropriate Federal agency or State regulator to promote consistent regulatory treatment of automated decision systems.

11.

Relation to other laws

Except as explicitly provided otherwise in this Act, nothing in this Act, including any regulations promulgated under this Act, shall be construed to preempt, modify, limit, or supersede—(1)any provision of Federal or State law; or(2)the authority of the Federal Trade Commission, Equal Employment Opportunity Commission, National Labor Relations Board, or any other Federal agency.

12.

Relation to collective bargaining agreements

(a)

Rule of construction

Nothing in this Act, including any regulations promulgated under this Act, shall be construed to supersede or preempt employment or other work terms or conditions agreed upon in collective bargaining agreements that are more protective of or more beneficial to a covered individual than otherwise required pursuant to this Act, including any regulation promulgated under this Act.(b)

Requirement for notice and bargaining

An employer shall provide advance notice to the relevant collective bargaining units or the representative of any covered individuals of the employer for purposes of collective bargaining and bargain in good faith with such units or representative over the decision to implement and effects of implementing any policy, practice, or automated decision system covered by this Act.

13.

Severability

If any provision of this Act or the application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this Act and the application of the provisions of such Act to all other persons or circumstances shall not be affected thereby.

14.

Authorization of appropriations

There is authorized to be appropriated to the Secretary to carry out this Act $100,000,000 for each of fiscal years 2027 through 2036.