FLOOR ALERT AB 2930 (Bauer-Kahan) Automated Decision Tools – OPPOSE August 19, 2024

FLOOR ALERT
AB 2930 (Bauer-Kahan)
Automated Decision Tools – OPPOSE
August 19, 2024

AB 2930’s most recent amendments present major challenges to temporary staffing agencies and other California employers. The unique nature of the temporary employee hiring process and the extraordinary volume and diversity of job applications make compliance with the bill’s latest notice provisions impossible. Those provisions would apply in any case involving the use of ADT to make “consequential decisions,” including those having impact on employment, including hiring, pay or promotion, and termination.

Staffing agencies recruit job candidates in three basic ways (1) by searching their internal “active” candidate pools made up of candidates previously screened by the agency and thus currently eligible for temporary assignments, (2) by advertising potential or actual jobs through job boards or on the agencies’ own websites, and (3) by searching the internet for so-called “passive” candidates. In each case, ADT is used to recruit and place candidates in a variety of ways, all of which are designed to quickly source the best candidates into quality jobs.

Prior Notice in Job Advertisements Should Be Addressed By Website and Job Board Pop-up Notices; Post Consequential-Decision Notices Would Be Impossible for Staffing Agencies

Prior Notice:  Section 22756.2(a)(1)-(2) of AB 2930 would require employers using ADT to notify job candidates, prior to an ADT making a consequential decision, that ADT is being used in making such decision, along with other information including: the purpose of the ADT, contact information for the deployer, and highly technical information related to the ADT, including impact assessment results. 

Post consequential-decision notice:  Section 22756.2(c) of AB 2930 further requires an employer that “deployed an automated decision tool, to make, or be a substantial factor in making, a consequential decision concerning a natural person” to provide additional notices, including a “(1) [a] simple and actionable explanation that identifies the principal factors, characteristics, logic and other information related to the individual that led to the consequential decision, (2) [t]he role that the automated decision tool played in the decision making process, and (3) [t]he opportunity to correct any incorrect personal data that the automated decision tool processed in making, or as a substantial factor in making, the consequential decision.”

These two sets of notices present major operational challenges for staffing agencies.

Providing temporary job candidates with prior notice of ADT use is practically impossible. In each of the three search methods described above, staffing agencies necessarily will have already used ADT to conduct the initial search, whether the resumes come from a job board, their own website or candidate pool, or from an internet search. In each case, it is not possible to provide advance notice because the ADT has already been used. To provide notice of ADT use in the initial stages of any search, agencies would have to notify the entire universe of potential applicants—a literal impossibility.

However, providing notice in job advertisements can be addressed by allowing staffing agencies to comply via a “pop-up” notice in the employment section of their websites which all job candidates would see when they access the site. New York City adopted such an approach in regulations issued last year allowing employers to post website notices to candidates for employment.

While providing notice on an agency’s own website would satisfy the notice requirement in the case of job advertisements agencies post on their sites, for the reasons previously discussed this does not solve their inability to provide notice when they search job boards, their internal candidate pools, or the internet. For that reason, we propose that posting the “prior notice” on an agency’s website be deemed sufficient for all purposes.

The “post-consequential decision-making notifications” requirement, however, could not be met with such a “pop-up.”  The bill as currently written would require every single applicant and every single individual in a staffing agency’s candidate pool to receive personalized, tailored notice every time an ADT was used to narrow down a candidate pool. This would require thousands of notices to applicants, every day. Because ADT key word searches filter a staffing agency’s extensive candidate pools by job industry sectors – for instance, “light industrial” candidates from “information technology” candidates – such notices would be required even for applicants that clearly would never be eligible for a particular assignment. Even the successful candidates would be required to receive such notice. 

Such extreme burdens would mean that as a practical matter ADTs could no longer be utilized, and that result cannot be the public policy goal of AB 2930. Without the use of automated tools of some form, a massive number of potential applicants would never have their submissions reviewed, as employers simply do not have the manpower to review every inquiry received. The use of ADTs allows for the evaluation of a much greater number of applicants and in turn promotes fairness.

For these reasons, we respectfully oppose AB 2930.  We urge the committee to strike Section 22756.2(c) of AB 2930, and add language to allow “pop-up” notices on a staffing agency’s website to meet any “prior notice” obligations.