Use of automated decision systems in employment settings regulated.

A bill for an act

relating to employment; regulating the use of automated decision systems in

employment settings; proposing coding for new law in Minnesota Statutes, chapter

181.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin

[181.9921] DEFINITIONS.

new text end

new text begin

(a) For the purposes of sections 181.9921 to 181.9927, the following terms have the

meanings given.

new text end

new text begin

(b) "Artificial intelligence" means an engineered or machine-based system that varies

in its level of autonomy and that can, for explicit or implicit objectives, infer from the input

it receives how to generate outputs that can influence physical or virtual environments.

new text end

new text begin

(c) "Authorized representative" means any person or organization appointed by the

worker to serve as an agent of the worker. Authorized representative does not include a

worker's employer.

new text end

new text begin

(d) "Automated decision system" means any computational process derived from machine

learning, statistical modeling, data analytics, or artificial intelligence that issues simplified

output, including a score, classification, or recommendation, that is used to assist or replace

human discretionary decision making and materially impacts natural persons. An automated

decision system does not include a spam email filter, a firewall, antivirus software, identity

and access management tools, a calculator, a database, a dataset, or another compilation of

data.

new text end

new text begin

(e) "Automated decision system output" means any information, data, assumptions,

predictions, scoring, recommendations, decisions, or conclusions generated by an automated

decision system.

new text end

new text begin

(f) "Electronic monitoring tool" means any system, application, or instrument that

facilitates the collection of data concerning worker activities, communications, actions,

biometrics, or behaviors by means other than direct observation by a person, including but

not limited to video or audio surveillance, continuous incremental time-tracking tools,

geolocation, electromagnetic tracking, or photoelectronic tracking, or that utilizes a

photo-optical system or similar means.

new text end

new text begin

(g) "Employer" means any person who directly or indirectly, or through an agent, vendor,

or any other person, employs or exercises control over the wages, benefits, other

compensation, hours, working conditions, access to work or job opportunities, or other

terms or conditions of employment, of any worker. Employer includes all units of state and

local government but does not include the federal government. Employer includes a labor

contractor or vendor of a person defined as an employer under this paragraph.

new text end

new text begin

(h) "Employment-related decision" means any decision by an employer that impacts

wages, wage setting, benefits, compensation, work hours, work schedule, performance

evaluation, hiring, recruitment, discipline, promotion, termination, job tasks, skill

requirements, work responsibilities, assignment of work, access to work and training

opportunities, productivity requirements, workplace health and safety, and any other terms

or conditions of employment. For persons classified as independent contractors or for

candidates for employment, an employment-related decision means the equivalent of these

decisions based on the person's contract with or relationship to the employer.

new text end

new text begin

(i) "Essential job functions" means the fundamental duties of a position, as revealed by

objective evidence such as the amount of time workers spend performing each function,

the consequences of not requiring individuals to perform the function, the terms of any

applicable collective bargaining agreement, workers' past and present work experiences and

performance in the position, and the employer's reasonable, nondiscriminatory judgment

of which functions are essential. Past and current written job descriptions and the employer's

reasonable, nondiscriminatory judgment of which functions are essential is evidence of

which functions are essential for achieving the purpose of the job, but must not be the sole

basis for this determination absent the objective evidence described in this paragraph.

new text end

new text begin

(j) "Individualized" means specific to an individual or group, band, class, or tier of

individuals with particular personal characteristics, behaviors, or biometrics.

new text end

new text begin

(k) "Vendor" means a third party, subcontractor, or entity engaged by an employer or

an employer's labor contractor to provide software, technology, or a related service that is

used to collect, store, analyze, or interpret worker data or worker information.

new text end

new text begin

(l) "Worker" means any natural person who is a job applicant to, an employee of, or an

independent contractor providing service to or through an employer.

new text end

new text begin

(m) "Worker data" means any information that identifies, relates to, describes, or is

reasonably capable of being associated with, or could reasonably be linked, directly or

indirectly, with a worker, regardless of how the information is collected, inferred, or obtained.

Worker data includes but is not limited to:

new text end

new text begin

(1) personal identity information, including the worker's name, contact information,

government-issued identification numbers, financial information, criminal record, or

employment history;

new text end

new text begin

(2) biometric information, including data generated by automatic measurements of a

worker's biological characteristics, such as a fingerprint, a faceprint, a voiceprint, eye retinas,

irises, or gait, or other unique biological patterns or characteristics that can be used,

individually or in combination with other data, to identify or collect information about an

individual;

new text end

new text begin

(3) health, medical, lifestyle, and wellness information, including the worker's medical

history, physical or mental condition, diet or physical activity patterns, heart rate, medical

treatment or diagnosis by a health care professional, health insurance policy number,

subscriber identification number, or other unique identifier used to identify the worker; and

new text end

new text begin

(4) any data related to workplace activities, including the following:

new text end

new text begin

(i) human resources information, including the contents of a worker's personnel file or

performance evaluations;

new text end

new text begin

(ii) work process information, such as data relating to an individual worker's performance

or productivity, including but not limited to the quality and quantities of tasks performed,

quality and quantities of items or materials handled or produced, rates or speeds of tasks

performed, measurements or metrics of worker performance in relation to a quota, and time

categorized as performing tasks or not performing tasks;

new text end

new text begin

(iii) data that captures workplace communications and interactions, including emails,

texts, internal message boards, screenshots, and customer interaction and ratings;

new text end

new text begin

(iv) device usage and data, including but not limited to keystroke recording; website,

software, and application utilization; calls placed; or geolocation information;

new text end

new text begin

(v) audio, photo, or video data or other information collected from sensors, including

movement tracking; thermal sensors; voiceprints; or facial, emotion, and gait recognition;

new text end

new text begin

(vi) inputs to or outputs generated by an automated decision system that are linked to

the worker;

new text end

new text begin

(vii) data collected through electronic monitoring or continuous incremental time-tracking

tools; and

new text end

new text begin

(viii) data collected or generated on workers to mitigate the spread of infectious diseases,

including COVID-19, or to comply with public health measures.

new text end

Sec. 2.

new text begin

[181.9922] PRE-USE NOTICE.

new text end

new text begin

Subdivision 1.

new text end

new text begin

Pre-use notice; provision.

new text end

new text begin

(a) An employer must provide a written notice

that an automated decision system is in use at the workplace for the purpose of making

employment-related decisions, to a worker who will be directly or indirectly affected by

the automated decision system, or the worker's authorized representative, and to any union

representing workers who could be directly or indirectly affected by the automated decision

system.

new text end

new text begin

(b) The notice in paragraph (a) must be provided:

new text end

new text begin

(1) if the automated decision system is introduced after the effective date of this section,

at least 30 days before the introduction of the automated decision system;

new text end

new text begin

(2) if the employer is using an existing automated decision system as of the effective

date of this section, no later than September 1, 2026;

new text end

new text begin

(3) prominently to a job applicant or new worker, before the employer collects the

applicant's or worker's personal information that the employer plans to process using the

automated decision system;

new text end

new text begin

(4) at least 30 days before implementing any significant change to the automated decision

system or how the employer is using the automated decision system; and

new text end

new text begin

(5) to a union representing workers who will be subject to the automated decision system,

on a timeline that provides a meaningful opportunity to bargain over the use, scope, and

impact of the automated decision system prior to deployment or modification of the tool.

new text end

new text begin

(c) Every time an employer provides a notice under paragraph (a), a copy of that notice

must be submitted to the commissioner of labor and industry within ten days of the date the

notice was provided to the worker. Copies of notices under paragraph (a) must also be made

available to authorized representatives upon request.

new text end

new text begin

(d) Notices under paragraph (a) must be:

new text end

new text begin

(1) written in plain language as a separate and standalone communication;

new text end

new text begin

(2) in the language in which routine communications and other information are provided

to workers; and

new text end

new text begin

(3) provided using a simple and easy-to-use method, including an email, hyperlink, or

other written format.

new text end

new text begin

(e) A job applicant or worker must receive the notice required under this section and

respond with affirmative written consent before the worker or applicant is subject to an

automated decision system.

new text end

new text begin

(f) If reasonable alternatives to the use of the automated decision system exist, the worker

must be allowed to opt out of being subject to the automated decision system.

new text end

new text begin

Subd. 2.

new text end

new text begin

Pre-use notice; contents.

new text end

new text begin

The notice required under subdivision 1, paragraph

(a), must contain the following information:

new text end

new text begin

(1) a plain-language explanation of the nature, purpose, and scope of the decisions for

which the automated decision system will be used, including the specific employment-related

decisions potentially affected;

new text end

new text begin

(2) the specific category and sources of worker data the automated decision system will

use or collect, and how that data was or will be collected;

new text end

new text begin

(3) the logic used in the automated decision system, including the key parameters that

affect the output of the automated decision system, and the type of outputs the automated

decision system will produce;

new text end

new text begin

(4) the individuals, vendors, and entities that created the automated decision system and

the individuals, vendors, and entities that will run, manage, and interpret the results of the

automated decision system output;

new text end

new text begin

(5) the job qualifications and characteristics that the automated decision system assesses,

what worker data or attributes the system uses to conduct that assessment, and what kind

of outputs the system produces as an evaluation of the worker;

new text end

new text begin

(6) the results of any impact assessments of the automated decision system, whether

performed by the employer or the automated decision system vendor, and how to access

that information;

new text end

new text begin

(7) an up-to-date list of all automated decision systems the employer is currently using;

and

new text end

new text begin

(8) a description of the worker's rights under sections 181.9922 to 181.9927.

new text end

Sec. 3.

new text begin

[181.9923] RECORDS.

new text end

new text begin

Subdivision 1.

new text end

new text begin

Data records.

new text end

new text begin

(a) Employers must maintain records of worker data

collected, used, or produced by an automated decision system and any input or output data

used or produced by the automated decision system or used as corroborating evidence by

a human reviewer for 36 months after the data's most recent collection, production, or use

to ensure compliance with requests for data from workers or the commissioner of labor and

industry.

new text end

new text begin

(b) Employers must destroy any worker data collected, used, or produced by an automated

decision system and any input or output data used or produced by the automated decision

system or used as corroborating evidence by a human reviewer no later than 37 months

after its most recent collection, production, or use, unless the worker has provided written

and informed consent to the retention of the worker's data by the employer.

new text end

new text begin

(c) Employers must protect the confidentiality, integrity, and accessibility of worker

data using data security practices consistent with data and cyber privacy laws and appropriate

to the volume and nature of the worker data collected.

new text end

new text begin

Subd. 2.

new text end

new text begin

Record requests.

new text end

new text begin

(a) A worker has the right to request a copy of:

new text end

new text begin

(1) any of the worker's data collected, used, or produced by an automated decision

system;

new text end

new text begin

(2) any input or output data used or produced by the automated decision system; and

new text end

new text begin

(3) corroborating evidence used by a human reviewer.

new text end

new text begin

(b) The employer must provide copies of the data requested within seven days of receiving

a worker's request.

new text end

new text begin

Subd. 3.

new text end

new text begin

Record corrections.

new text end

new text begin

(a) A worker has the right to request corrections to:

new text end

new text begin

(1) any worker data collected, used, or produced by an automated decision system;

new text end

new text begin

(2) any input or output data used or produced by the automated decision system; and

new text end

new text begin

(3) any corroborating evidence used by a human reviewer.

new text end

new text begin

(b) An employer that receives a request to correct any of the information listed in

paragraph (a) must investigate and determine whether the disputed data is inaccurate.

new text end

new text begin

(c) If an employer determines that the disputed data is inaccurate, the employer must:

new text end

new text begin

(1) promptly correct the disputed data and inform the worker of the employer's decision

and action;

new text end

new text begin

(2) review and adjust any employment-related decisions that were partially or solely

based on the inaccurate data and inform the worker of the adjustment; and

new text end

new text begin

(3) inform any third parties with which the employer shared the inaccurate data, or from

which the employer received the inaccurate data, of the error and direct those third parties

to correct the data.

new text end

new text begin

(d) If an employer, upon investigation, determines that the disputed data is accurate, the

employer must inform the worker of:

new text end

new text begin

(1) the decision not to amend the disputed data;

new text end

new text begin

(2) the steps taken to verify the accuracy of the data; and

new text end

new text begin

(3) the evidence supporting the decision not to amend the disputed data.

new text end

Sec. 4.

new text begin

[181.9924] EMPLOYER REQUIREMENTS.

new text end

new text begin

Subdivision 1.

new text end

new text begin

Prohibitions.

new text end

new text begin

(a) An employer is prohibited from using an automated

decision system to:

new text end

new text begin

(1) prevent compliance with or cause a violation of any federal, state, or local law or

regulation;

new text end

new text begin

(2) obtain or infer a worker's immigration status; veteran status; ancestral history; religious

or political beliefs; health or reproductive status, history, or plan; emotional or psychological

state; neural data; sexual or gender orientation; disability; criminal record; or credit history;

new text end

new text begin

(3) make predictions or inferences about a worker's behavior, beliefs, intentions,

personality, emotional state, health, or other characteristics or behaviors that are unrelated

to the worker's essential job functions;

new text end

new text begin

(4) identify, predict, or take adverse action against a worker for exercising the worker's

legal rights;

new text end

new text begin

(5) draw on facial, gait, or emotion recognition technologies; or

new text end

new text begin

(6) collect data for a purpose that was not disclosed in the notice required by section

181.9922.

new text end

new text begin

(b) An employer must not use an automated decision system that uses individualized

worker data as inputs or outputs to set compensation, unless the employer can demonstrate

that:

new text end

new text begin

(1) the input data is directly related to the ability of the worker to complete the task,

such as education, training, experience, or seniority;

new text end

new text begin

(2) the inputs used are clearly communicated to the worker such that the worker knows

their compensation is a function of the identified attributes; and

new text end

new text begin

(3) the employer uses the automated decision system either:

new text end

new text begin

(i) not more than once per six-month period per worker; or

new text end

new text begin

(ii) only in conjunction with a meaningful change in work duties, such as hiring or

promotion.

new text end

new text begin

(c) An employer must not retaliate against a worker in any way for refusing to follow

the output of an automated decision system when the worker has a reasonable, good-faith

belief that doing so would cause harm or discrimination or otherwise violate a law or

regulation.

new text end

new text begin

(d) An employer must not take any adverse action against a worker based on data from

a continuous time-tracking tool, except in cases of egregious misconduct.

new text end

new text begin

Subd. 2.

new text end

new text begin

Employment-related decisions.

new text end

new text begin

(a) An employer must not rely solely on an

automated decision system when making an employment-related decision.

new text end

new text begin

(b) When an employer relies in part on an automated decision system in making an

employment-related decision, the employer must: (1) ensure the accuracy of the automated

decision system output; and (2) use a designated internal reviewer to conduct an investigation

and compile corroborating information for the decision. This information may include but

is not limited to supervisory or managerial evaluations, personnel files, employee work

products, or peer reviews.

new text end

new text begin

(c) The designated internal reviewer must:

new text end

new text begin

(1) have sufficient authority, discretion, resources, and time to corroborate the automated

decision system output;

new text end

new text begin

(2) have sufficient expertise in the operation of similar systems and a sufficient

understanding of the automated decision system in question to interpret the outputs and

results of relevant impact assessments;

new text end

new text begin

(3) have sufficient education, training, or experience to allow the reviewer to make a

well-informed decision, including education about the limitations and biases of automated

decision systems and training on workers' rights under sections 181.9922 to 181.9927; and

new text end

new text begin

(4) be protected from retaliation for exercising the reviewer's responsibilities.

new text end

new text begin

(d) When an employer cannot corroborate the automated decision system output, or the

human reviewer has concluded that the automated decision system output is inaccurate,

incomplete, or misleading, the employer must not rely on the automated decision system

to make the employment-related decision.

new text end

Sec. 5.

new text begin

[181.9925] POST-USE NOTICE AND RIGHT TO ACCESS.

new text end

new text begin

Subdivision 1.

new text end

new text begin

Notice.

new text end

new text begin

(a) An employer that has used an automated decision system to

make an employment-related decision must provide the affected worker with a written

notice:

new text end

new text begin

(1) at the time the employer informs the worker of the decision, or no later than 15

business days from the date of the decision, whichever is earlier; or

new text end

new text begin

(2) if the decision results in the discipline or termination of the worker, at least 30 days

before the discipline or termination takes effect.

new text end

new text begin

(b) The employer must provide a notice under paragraph (a) that is:

new text end

new text begin

(1) written in plain language as a separate and standalone communication;

new text end

new text begin

(2) in the language in which routine communications and other information are provided

to workers; and

new text end

new text begin

(3) provided using a simple and easy-to-use method, including an email, hyperlink, or

other written format.

new text end

new text begin

(c) A notice under paragraph (a) must contain the following information:

new text end

new text begin

(1) an acknowledgment that the employer used an automated decision system to make

one or more employment-related decisions with respect to the worker;

new text end

new text begin

(2) a description of the worker's rights under sections 181.9922 to 181.9927;

new text end

new text begin

(3) a form or a hyperlink to an electronic form for the worker to file an appeal or request

detailed information about the data and automated decision system used in the decision;

and

new text end

new text begin

(4) that the employer is prohibited from retaliating against the worker for exercising the

worker's rights under this section.

new text end

new text begin

(d) If an employer uses the same automated decision system in the same way multiple

times a quarter, an employer must provide each affected employee:

new text end

new text begin

(1) the full notice required by this section for the first use of the automated decision

system each quarter; and

new text end

new text begin

(2) a second notice at the end of the quarter that provides:

new text end

new text begin

(i) the number of times the employer or operator used the automated decision system

that quarter;

new text end

new text begin

(ii) the dates the employer or operator used the automated decision system that quarter;

and

new text end

new text begin

(iii) a description of the worker's rights under sections 181.9922 to 181.9927, including

the right to access information about each decision.

new text end

new text begin

Subd. 2.

new text end

new text begin

Right to access.

new text end

new text begin

(a) When responding to a worker's access request, an employer

must provide the following information to the worker:

new text end

new text begin

(1) a plain-language explanation of the specific decision for which the employer used

the automated decision system;

new text end

new text begin

(2) in a simple and easy-to-use format, the specific worker data that the automated

decision system used and all specific worker outputs produced by the automated decision

system;

new text end

new text begin

(3) how the employer used the automated decision system output with respect to the

worker, including:

new text end

new text begin

(i) the rationale for the decision, including the specific roles the output and human

involvement played in the business's decision;

new text end

new text begin

(ii) any additional corroborating information or judgments the employer used in addition

to the automated decision system output in making the decision;

new text end

new text begin

(iii) how the logic of the automated decision system, including its assumptions and

limitations, was applied to the worker;

new text end

new text begin

(iv) the key parameters or performance metrics that affected the output of the automated

decision system with respect to the worker and how those parameters applied to the worker;

and

new text end

new text begin

(v) the range of possible outputs and aggregate output statistics, to help a worker

understand how they compare to other workers;

new text end

new text begin

(4) the name of the entity that created the automated decision system and the product

name of the automated decision system; and

new text end

new text begin

(5) a copy of any completed impact assessments of the automated decision system.

new text end

new text begin

(b) An employer must respond to an access request no later than 14 calendar days from

the date the employer received the request.

new text end

new text begin

(c) A service provider, contractor, or vendor must provide full assistance to the employer

in responding to a worker request for access, including any of that worker's input or output

data in the service provider, contractor, or vender's possession and any relevant information

about the automated decision system.

new text end

Sec. 6.

new text begin

[181.9926] RIGHT TO APPEAL.

new text end

new text begin

(a) An employer that uses an automated decision system to make an employment-related

decision must provide the affected worker with a form or a hyperlink to an electronic form

to appeal the decision.

new text end

new text begin

(b) The appeal form provided to an affected worker must include:

new text end

new text begin

(1) the option to request access to the data used as input to or as output from the

automated decision system;

new text end

new text begin

(2) the option to request access to any corroborating or supporting evidence provided

by a human reviewer to verify output from the automated decision system;

new text end

new text begin

(3) space for the worker's reason for an appeal and any evidence the worker has to support

the appeal; and

new text end

new text begin

(4) information on how the worker can designate an authorized representative who can

also access the data.

new text end

new text begin

(c) A worker appealing the employment-related decision must submit their appeal form

within 30 days of receiving the notification under section 181.9925.

new text end

new text begin

(d) Within five business days of receiving an appeal form, an employer must respond

to the worker submitting the form. To respond to an appeal, the employer must designate

a human reviewer who:

new text end

new text begin

(1) must objectively evaluate all evidence;

new text end

new text begin

(2) has sufficient authority, discretion, and resources to evaluate the decision, including

education about the limitations and biases of automated decision systems and training on

workers' rights under sections 181.9922 to 181.9927;

new text end

new text begin

(3) has the authority to overturn the employer's decision; and

new text end

new text begin

(4) was not involved in making the decision the worker is appealing.

new text end

new text begin

(e) After reviewing the evidence, the human reviewer must produce a clear, written

document describing the result of the appeal and the reasons for that result. This document

must be provided to both the employer and the worker.

new text end

new text begin

(f) If the human reviewer determines that the employment-related decision should be

overturned, the employer must rectify the decision within five business days of receiving

the decision.

new text end

Sec. 7.

new text begin

[181.9927] ENFORCEMENT.

new text end

new text begin

Subdivision 1.

new text end

new text begin

Retaliation.

new text end

new text begin

An employer must not discharge, threaten to discharge,

demote, suspend, or in any manner discriminate or retaliate against any worker for using

or attempting to use the worker's rights under this section and sections 181.9922 to 181.9926,

including but not limited to filing a complaint with the commissioner of labor and industry,

alleging a violation, cooperating in an investigation or prosecution of an alleged violation,

taking any action to invoke or assist in enforcing these rights, or exercising or attempting

to exercise any of these rights.

new text end

new text begin

Subd. 2.

new text end

new text begin

Enforcement.

new text end

new text begin

(a) The commissioner of labor and industry must enforce this

section and sections 181.9922 to 181.9926, including investigating alleged violations,

ordering appropriate temporary relief to mitigate a violation or maintain the status quo

pending the completion of a full investigation or hearing, issuing citations against employers,

and filing civil actions.

new text end

new text begin

(b) An employer who violates this section or sections 181.9922 to 181.9926 may be

liable to the plaintiff in a civil action for any and all damages recoverable at law, including

punitive damages, such injunctive and other equitable relief as determined by the court,

together with costs and disbursements, including reasonable attorney fees.

new text end

new text begin

(c) A civil action under this section may be brought in a district court of competent

jurisdiction by:

new text end

new text begin

(1) the commissioner of labor and industry;

new text end

new text begin

(2) the attorney general under section 8.31; or

new text end

new text begin

(3) a worker aggrieved by the violation, or the worker's exclusive representative.

new text end

new text begin

Subd. 3.

new text end

new text begin

Civil penalties.

new text end

new text begin

(a) An employer who violates section 181.9922 or 181.9925

is subject to a civil penalty of $1,000 per violation and each day a worker is affected

constitutes a separate violation.

new text end

new text begin

(b) An employer who violates section 181.9923, 181.9924, or 181.9926 is subject to a

civil penalty of $2,500 per violation. Each day a worker is affected constitutes a separate

violation. Under section 181.9924, each use of an automated decision system constitutes a

separate violation.

new text end

new text begin

Subd. 4.

new text end

new text begin

Joint and several liability.

new text end

new text begin

Each employer and labor contractor or vendor

engaged by an employer to provide services is jointly and severally liable for any violation

of this section or sections 181.9922 to 181.9926.

new text end

new text begin

Subd. 5.

new text end

new text begin

Preemption.

new text end

new text begin

This section does not preempt any city, county, or city and county

ordinance that provides equal or greater protection to workers who are covered by this

section and sections 181.9922 to 181.9926.

new text end

new text begin

Subd. 6.

new text end

new text begin

Severability.

new text end

new text begin

The provisions of this section and sections 181.9921 to 181.9926

are severable. If any provision or its application is held invalid, that invalidity does not

affect other provisions or applications that can be given effect without the invalid provision

or application.

new text end

new text begin

Subd. 7.

new text end

new text begin

Model notice.

new text end

new text begin

The commissioner of labor and industry must create and publish

on the department's website model language that employers may use for the notices required

under sections 181.9922 and 181.9925.

new text end