By Mitchell Chamberlin
After multiple attempts by the California legislature to pass laws regulating the use of artificial intelligence (AI) and automated-decision systems in employment, the State of California’s Office of Administrative Law has approved amendments to the California Fair Employment and Housing Act (FEHA) meant to regulate employers’ use of these technology tools. These amendments are set to go into effect on October 1, 2025.
Employers should take note of the following amendments made to FEHA:
- Clear definitions of “automated-decision systems (ADS),” “algorithm,” “artificial intelligence,” and “machine learning”;
- A mandate to retain all relevant employment records, including ADS data and documentation, for at least four years;
- Notice requirements obligating employers to inform applicants and employees when an ADS is used in employment decision-making;
- A requirement to provide reasonable accommodations for individuals with disabilities or religious needs, particularly when ADS tools evaluate attributes (e.g., reaction time, vocal tone) that may be impacted;
- Explicit language stating that practices resulting in adverse impact are unlawful unless the criteria used are job-related, consistent with business necessity, and there is no less discriminatory alternative available that would serve the employer’s goals as effectively;
- Recognition that, in the event of a legal claim, evidence (or lack thereof) of proactive anti-bias testing and mitigation efforts—including the quality, effectiveness, scope, and response to such testing—will be relevant.
DCI will continue to monitor developments regarding the use of AI in employment. To learn more about new state AI laws, register for our upcoming webinar.