Vermont H 262: An act relating to restricting electronic monitoring of employees and the use of employment-related automated decision systems

Bill Text

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VT LEG #378587 v.1
H.262 1
Introduced by Representatives Priestley of Bradford, Chapin of East 2
Montpelier, Hooper of Burlington, Masland of Thetford, 3
McCann of Montpelier, McGill of Bridport, Minier of South 4
Burlington, Nugent of South Burlington, and Olson of 5
Starksboro 6
Referred to Committee on 7
Date: 8
Subject: Labor; employment practices; fair employment; electronic 9
monitoring; automated decision systems 10
Statement of purpose of bill as introduced: This bill proposes to restrict the 11
use of electronic monitoring of employees and the use of automated decision 12
systems for employment-related decisions. 13
An act relating to restricting electronic monitoring of employees and the use 14
of employment-related automated decision systems 15
It is hereby enacted by the General Assembly of the State of Vermont: 16
Sec. 1. 21 V.S.A. § 495q is added to read: 17
§ 495q. ELECTRONIC MONITORING OF EMPLOYEES; AUTOMATED 18
DECISION SYSTEMS; RESTRICTIONS; EXCEPTIONS 19
(a) Definitions. As used in this section: 20

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(1) “Algorithm” means a computerized procedure consisting of a set of 1
steps used to accomplish a determined task. 2
(2) “Automated decision system” means an algorithm or computational 3
process that is used to make or assist in making employment-related decisions, 4
judgments, or conclusions. The term “automated decision system” includes 5
algorithms and computational processes that are derived from machine 6
learning, statistics, data processing, or artificial intelligence. 7
(3) “Automated decision system output” means information, data, 8
assumptions, predictions, scoring, recommendations, decisions, or conclusions 9
generated by an automated decision system. 10
(4) “Data” means information obtained by any means that, directly or 11
indirectly, identifies, relates to, describes, may reasonably be associated with, 12
or could reasonably be linked to an employee, including: 13
(A) personal identifying information; 14
(B) biometric information; 15
(C) health, medical, lifestyle, and wellness information; 16
(D) information related to workplace activities; 17
(E) human resources information and personnel files; and 18
(F) information related to the employee’s internet and digital 19
activities, including electronic communications, private social media activity, 20
and personal internet protocol address. 21

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(5) “Electronic monitoring” means the collection of information 1
concerning employee activities or communication by any means other than 2
direct, in-person observation, including through the use of a digital device; 3
computer; telephone; wire; radio; camera; or electromagnetic, photoelectronic, 4
or photo-optical system. 5
(6) “Employee” means an individual who in consideration of direct or 6
indirect gain or profit is employed by an employer. As used in this section, 7
“employee” includes job applicants and independent contractors providing 8
services, directly or indirectly, to an employer. 9
(7) “Employer” means a person who directly or indirectly employs or 10
exercises control over the wages, benefits, other compensation, hours, working 11
conditions, access to work or job opportunities, or other terms and conditions 12
of employment of an employee. For purposes of this section, “employer” 13
includes the employer’s agents, labor contractors, or other affiliates or 14
subcontractors through which individuals perform work on behalf of the 15
employer or otherwise provide services that are integrated into the employer’s 16
business operations. 17
(8) “Employment-related decision” means any decision made by an 18
employer that: 19
(A) affects an employee’s compensation, benefits, or terms and 20
conditions of employment; 21

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(B) relates to the discipline, evaluation, promotion, or termination of 1
an employee; or 2
(C) relates to the hiring of an individual or employee for a position or 3
job. 4
(9) “Essential job function” means a fundamental duty of a job or 5
position that an employee with that job or position must be able to perform, as 6
revealed by objective evidence, such as the amount of time an employee 7
spends performing a function, the terms of any applicable collective bargaining 8
agreement, the employee’s past and present work experiences, and the 9
employee’s performance in the position. The employer’s reasonable, 10
nondiscriminatory judgment as to which job functions are essential may be 11
relevant evidence but not the sole basis for a determination as to which 12
functions are essential, the determination of which requires consideration of 13
objective evidence. 14
(10) “Periodic assessment of an employee’s performance” means the 15
assessment of an employee’s performance over the course of units of time 16
equal to or greater than one