Use of an automated decision system by an employer

(a) Employment-Related decisions (1) In general An employer— (A) may not rely exclusively on an automated decision system in making an employment-related decision with respect to a covered individual; and (B) may not use an automated decision system output in making an employment-related decision with respect to a covered individual unless— (i) the automated decision system used to generate such automated decision system output has had pre-deployment testing and validation with respect to— (I) the efficacy of the system; (II) the compliance of the system with applicable employment discrimination laws, including— (aa) title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); (bb) the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); (cc) title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.); (dd) title II of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.); (ee) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); (ff) sections 501 and 505 of the Rehabilitation Act of 1973 (29 U.S.C. 791; 793); and (gg) the Pregnant Workers Fairness Act (division II of the Consolidated Appropriations Act, 2023 (Public Law 117–328)); (III) the lack of any potential discriminatory impact of the system, including discriminatory impact based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age, or disability and genetic information (including family medical history); and (IV) the compliance of the system with the Artificial Intelligence Risk Management Framework released by the National Institute of Standards and Technology on January 26, 2023, or successor framework; (ii) such automated decision system is, not less than annually, independently tested for discriminatory impact described in clause (i)(III) or potential biases and the results of such test are made publicly available; (iii) the employer has provided the disclosure required under paragraph (2) with respect to such use of an automated decision system output; (iv) such use is designed for purposes of making such an employment-related decision; (v) the employer independently corroborates, via meaningful oversight by a human with appropriate and relevant experience, such automated decision system output; (vi) not later than 7 days after making such an employment-related decision, the employer provides full, accessible, and meaningful documentation in plain language to such covered individual (at no cost to such covered individual) on the automated decision system output, including— (I) a description of the automated decision system used to generate such automated decision system output; (II) a description and explanation, in plain language, of the input data to such automated decision system used to generate such automated decision system output and a machine-readable copy of such data; (III) a description and explanation of how such automated decision system output was used in making such employment-related decision; and (IV) the reasoning for the use of such automated decision system output in such employment-related decision; and (vii) the employer enables the covered individual to, after receiving such documentation— (I) dispute (in a manner that is accessible and equitable and does not pose an unreasonable burden on the covered individual) such automated decision system output to a human with appropriate and relevant experience; and (II) appeal such employment-related decision to a human with appropriate and relevant experience who is not the human for purposes of the corroboration under clause (v). (2) Disclosure (A) In general An employer that uses or intends to use an automated decision system output in making an employment-related decision with respect to a covered individual shall, in accordance with subparagraph (B), disclose to such covered individual— (i) that the employer uses or intends to use an automated decision system output in making such an employment-related decision; (ii) a description and explanation of the automated decision system used or intended to be used to generate such automated decision system output, including— (I) the types of data collected or intended to be collected as inputs to the automated decision system and the circumstances of such collection; (II) the characteristics that the automated decision system measures or is intended to measure, such as the knowledge, skills, or abilities of the covered individual; (III) how such characteristics relate or would relate to any function required for the work or potential work of the covered individual; (IV) how the system measures or is intended to measure such characteristics; and (V) how the covered individual can interpret the automated decision system output in plain language; (iii) the identity of the individual or entity that operates the automated decision system that provides such an automated decision system output; (iv) how the employer uses or intends to use such an automated decision system output in making such an employment-related decision; and (v) how the covered individual may dispute or appeal an employment-related decision made with respect to the covered individual using an automated decision system output. (B) Timing of notice (i) Initial disclosure An employer shall provide the disclosure required under subparagraph (A)— (I) in the case of a covered individual for whom an employment-related decision with regard to the hiring of the covered individual— (aa) was made before the date of enactment of this Act, to the covered individual not later than 30 days after such date of enactment; or (bb) is made on or after the date of enactment of this Act, to the covered individual, except as provided in subclause (II), prior to making such employment-related decision; and (II) in the case of a candidate who applies to the employer on or after the date of enactment of this Act, prior to accepting an application by the candidate to be employed by, or otherwise perform work for remuneration for, the employer. (ii) Subsequent disclosures Not later than 30 days after any information provided by an employer to a covered individual through a disclosure required under clause (ii) or (iv) of subparagraph (A) significantly changes or after any significant new information required to be provided in such a disclosure becomes available, the employer shall provide the covered individual with an updated disclosure. (3) Training An employer that uses or intends to use an automated decision system output in making an employment-related decision with respect to a covered individual shall train any individual or entity that operates the automated decision system that provides such an automated decision system output or uses such automated decision system output on the use of such system, including on— (A) the input information used by such automated decision system; (B) the appeals process for such an automated decision system output; (C) potential biases in automated decision systems; (D) any limitations of the automated decision system; (E) any potential adverse effects to covered individuals due to the automated decision system; (F) any potential errors or problems related to the automated decision system; and (G) examples of inappropriate uses of the automated decision system. (b) Management by an automated decision system An employer that manages a covered individual through an automated decision system shall enable the covered individual to opt out of such management and be managed through a human manager who is able to make employment-related decisions with respect to the covered individual.