On August 30, the California legislature passed AB-1883 which prohibits employers from using workplace surveillance tools that rely on artificial intelligence (AI) to recognize, infer, or predict an employee’s emotional state, or to collect “neural data.” Illinois, a leader in biometric data, has bills that would amend the biometric law to include “neural data.” Other states including Connecticut, Massachusetts, Minnesota, Montana, and Vermont are also considering laws that would include prohibitions against the collection of neural data.
“Neural data” is generally defined as “information generated by measuring activity of an employee’s central or peripheral nervous system,” so any law would reach beyond conventional camera or location monitoring and into newer forms of neurotechnology, including smart glasses and more. “Workplace surveillance tool” is very broad and would include systems, applications, instruments, or devices that collect or facilitate the collection of employee data, activities, communications, actions, biometrics, or behaviors by means other than direct in-person observation. In includes video or audio surveillance, continuous time-tracking tools, geolocation, electromagnetic tracking, photoelectronic tracking, smart glasses and watches, and similar systems.
Under California’s bill, it does not ban all workplace surveillance. Rather, it targets a narrower subset of surveillance tools: those that use artificial intelligence for emotion recognition or neural data collection. Generally, employers may still use workplace surveillance tools for safety or other purposes if the tools do not fall within the prohibited specifications under most of these bills/laws.
With Illinois law, by including neural data as a biometric identifier, neural data would be subject to the same stringent regulations as other biometric identifiers, like fingerprints and scans of facial geometry, including that organizations would be required to provide individuals with notice regarding how neural data is collected and stored, for how long, and obtain explicit written consent before collecting, storing, or using neural data. Lawsuits under this law are very expensive to defend or to settle.
Why is neural data such an issue? The use of neurotechnology in the workplace raises important concerns about privacy, discrimination, and the ethics of monitoring employees' cognitive and emotional states. These laws are designed to protect workers from potential misuse while supporting the responsible application of technology to enhance productivity, decision-making, and workplace performance.
Maybe the easiest way to think about neurotechnology is through the lens of the Tom Cruise film Minority Report. In the movie, a specialized "PreCrime" unit uses advanced predictive technology to identify and apprehend individuals before they commit crimes. While the story relies on human psychics to foresee future events, it is not difficult to imagine AI and neurotechnology filling that role in a real-world scenario. The film's protagonist becomes a fugitive after being accused of a crime he has not committed, raising unsettling questions about privacy, prediction, and personal autonomy. While today's technology is far from that reality, the ethical concerns surrounding the monitoring and interpretation of human thoughts and behaviors are not entirely science fiction. Scary stuff.
The same technology could potentially be used to assess employee performance, influence promotion or termination decisions, and even determine who should or should not be hired, regardless of an individual's actual qualifications or the accuracy of the technology's predictions. For HR professionals, a critical question remains: How much weight should be given to human judgment versus algorithmic recommendations? The answer may help shape the future of work.
As fewer professionals enter the HR field and organizations continue to view HR primarily as a cost center rather than a strategic business function, there may be increasing pressure to rely on technology-driven decision-making. However, doing so without appropriate oversight could create significant risks.
At the same time, emerging AI regulations are beginning to require meaningful human involvement in employment decisions, although the legal definition of that requirement will likely continue to evolve through legislation and court rulings. As a result, HR compliance will become even more important. Because AI systems learn from the data they are given, flawed or biased inputs can produce inaccurate recommendations and unintended consequences, potentially exposing organizations to greater legal and reputational liability.
Source: Barnes Thornburg 9/2/26, Clio 9/15/25, Morrison Foerster 3/17/25