Update Applicable to: 
All employers that monitor employee-used vehicles in the state of California.

What happened?
On September 29, 2022, Governor Gavin Newsom signed Assembly Bill 984 (AB 984), which adds more privacy protections to vehicle tracking.

What are the details? 
Effective January 1, 2023, AB 984 builds on other privacy protections in California, such as the California Consumer Privacy Act and Penal Code Sec. 637.7. and prohibits using an electronic tracking device to determine the location or movement of a person; however, it does not apply when the vehicle owner (e.g., the employer) has consented to the use of the device.

Among other exciting provisions, including the latest in vehicle tech – digital license plates, AB-984 places significant restrictions on using an alternative device to monitor employees. Specifically, the law provides:

“An employer, or a person acting on behalf of the employer, shall not use an alternative device to monitor employees except during work hours, and only if strictly necessary for the performance of the employee’s duties.”

The statute defines monitoring to include, without limitation, “locating, tracking, watching, listening to, or otherwise surveilling the employee.” However, there is no definition of “strictly necessary,” making the statute more difficult to navigate.

Employers that choose to install such a device must provide notice to employees before monitoring with the device. That notice must, at a minimum, include the following:

1. A description of the specific activities that will be monitored.
   
2. A description of the worker data will be collected as a part of the monitoring.
   
3. Notifying whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including, but not limited to, disciplinary and termination decisions, and, if so, how, including any associated benchmarks.
   
4. A description of the vendors or other third parties, if any, to which information collected through monitoring will be disclosed or transferred. The description shall include the vendor or third party’s name and the data transfer’s purpose.
   
5. A description of the organizational positions authorized to access the data gathered through the alternative device.
   
6.  A description of the dates, times, and frequency that the monitoring will occur.
   
7. A description of where the data will be stored and the length of time it will be retained.
   
8.  A notification of the employee’s right to disable monitoring, including vehicle location technology, outside work hours.

Employers that fail to comply can be subject to significant penalties. A civil penalty of $250 can be imposed for an initial violation, while a $1,000 per employee can be imposed for each subsequent violation. The statute expressly provides that penalties “shall be assessed per employee, per violation, and per day that monitoring without proper notice is conducted.”

In addition to penalties, employers have additional exposure if found to have retaliated against an employee for removing or disabling an alternative device’s monitoring capabilities outside of work hours. In this case, the employee “shall be entitled to all available penalties, remedies, and compensation, including, but not limited to, reinstatement and reimbursement of lost wages, work benefits, or other compensation caused by the retaliation.”

For employers considering using an alternative device to monitor employees in vehicles, there are at least two steps to take:

• Assess whether doing so is “strictly necessary” for the performance of the employee’s duties
• Provide advance notice of the monitoring
  

For more information, please see the links below:

Assembly Bill 984 (AB 984)

Article

What do employers need to do?
Employers should review the links provided above, assess whether doing so is “strictly necessary” for the performance of the employee’s duties, and provide advance notice of the monitoring.

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