Exploitative Workplace Technologies Task Force Act

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).