FEHA employment regulations regarding automated-decision systems
Employers regularly employing five or more individuals; part-time and out-of-state employees count toward the five. Public entities regardless of size. Critically, an agent acting for an employer in recruitment, screening or hiring — including through an automated-decision system — is itself an employer under these regulations, which pulls vendors directly into scope.
- 01Stop using any automated-decision system, selection criterion or proxy that discriminates on a protected basis.
- 02Be able to show that any ADS selection device with adverse impact is job-related and consistent with business necessity.
- 03Retain records for four years — extended from two — expressly including automated-decision system data and selection criteria.
- 04Preserve all relevant records, including ADS data, once on notice of a complaint, until proceedings and appeals are finally terminated.
- 05Provide reasonable accommodation where an ADS assessment or video-interview analysis may screen out applicants protected by disability or religious creed.
- 06Build an accommodation-request mechanism into any online application technology that screens, ranks or prioritises on schedule or availability.
- 07Keep ADS-administered tests from operating as a pre-offer medical or psychological examination or a disability-related inquiry.
- 01Comply as an employer. Section 11008(e)(3) makes an agent an employer, so a screening vendor carries the same duties directly rather than by contract.
- 01No mandated bias audit. Anti-bias testing is evidentiary, not obligatory — the presence or absence of it is relevant to a claim or defence, but nothing requires it, sets a method, or sets a cadence.
- 02No applicant notice. Nothing in the package requires telling an applicant that an ADS is in use, what it measures, or what it produced.
- 03No ban on anything. ADS use, video-interview analysis and game-based assessment all remain lawful; liability runs through ordinary discrimination analysis.
- 04No registration, no impact assessment, no audit filing, no opt-out, no human-review right.
- 05Creates no new cause of action — enforcement runs through existing FEHA channels.
No new penalty regime. Remedies are the existing FEHA remedies pursued through the Civil Rights Department and the courts.
This is the row that names our category in regulation: the definition expressly reaches 'analyzing facial expression, word choice, and/or voice in online interviews'. Our stated scoring position is that the model reads the transcript only — word choice, not face or voice. Whether that position is documented well enough to survive a records request, and whether we retain ADS data for the required four years, has not been assessed on the record.
“A computational process that makes a decision or facilitates human decision making regarding an employment benefit”
Cal. Code Regs. tit. 2, § 11008.1(a)
Office of Administrative Law, Notice of Approval of Regulatory Action (effective 1 October 2025).