The Bill on the California Governor's Desk
On August 30, 2026, the California Legislature gave final passage to Assembly Bill 1883 and sent to Governor Gavin Newsom a measure that would make it unlawful for an employer to use an artificial intelligence workplace surveillance tool capable of collecting neural data, or of recognizing, inferring, or predicting a worker's emotional state. The bill adds a new Part 5.8, commencing with Section 1580, to Division 2 of the California Labor Code. It defines neural data as information generated by measuring the activity of a worker's central or peripheral nervous system that is not inferred from nonneural information. Enforcement runs through the Labor Commissioner, through a public prosecutor, or through a private civil action, with a civil penalty of up to $500 for each violation, injunctive relief, punitive damages, and attorney's fees.
That is a considerable amount of legislative machinery aimed at a technology most employers will tell you they do not use. The framing is the error. The technology is already installed, already generating data, and already resting in vendor databases that no compensation practitioner has yet thought to subpoena.
What Is Actually Being Measured
Nita Farahany, the Robinson O. Everett Professor of Law and Philosophy at Duke University, set out the commercial reality in her 2023 book, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology. Farahany reported that the Australian firm SmartCap had been selling electroencephalography-based fatigue tracking for more than a decade, using dry sensors built into hard hats, baseball caps, and conductors' brims, and that more than five thousand companies worldwide across mining, construction, trucking, aviation, and rail were using it to confirm that workers were awake. Emotiv's EEG earbuds detect flagging attention and prompt the wearer to take a break.
Farahany's central concern is not the hard hat. It is what happens when the same signal is repurposed. She describes a supervisor opening a contract renewal at a two percent raise while the employee's earbuds quietly register that she is satisfied with the offer, and observes that even a committed freedom-of-contract libertarian would question the fairness of that negotiation.
She frames the response as a right to cognitive liberty, an umbrella covering mental privacy, freedom of thought, and self-determination over one's own brain and mental experiences. That vocabulary is now migrating out of the academy and into statutes.
Why Neural Data Is Not Simply More Worker Data
Three features separate it from everything else in the surveillance catalog.
It is involuntary. A worker chooses what to type, where to drive, and what to say on a recorded line. No one chooses their alpha and theta rhythms. The signal is generated below conscious control and cannot be curated, edited, or withheld.
It is generative. Raw EEG is first-order data. What matters commercially is the second-order layer, the inferences an algorithm draws about attention, mental workload, stress, emotional state, and, over time, predicted performance and cognitive decline. The inference is the product, and the inference is what ends up in a file.
It is medical without being treated as medical. The Colorado General Assembly found that neural data is extremely sensitive, that it can reveal intimate information about health, mental states, emotions, and cognitive functioning, and that because every human brain is unique, neural data always contains information capable of linking back to the individual it came from. Colorado also found that when noninvasive neurotechnologies are used outside medical settings, they are generally treated as consumer products and operate without regulation or data protection standards. Outside the clinic, the headset is a gadget, and HIPAA never arrives.
The Compensation Consequences
This is where the abstraction ends. Each of the following is a foreseeable use of a data set that already exists.
Causation, running in both directions. A continuous physiological record of fatigue and cognitive load is the strongest evidence an occupational disease claimant has ever been handed. A worker alleging that rotating shifts produced a stress-related cardiac event, or that sustained cognitive overload contributed to a psychiatric disability, has historically fought uphill on medical causation. A time-stamped record of strain across a work cycle changes that fight. It also arms the other side. The same record can be read to show that the strain preceded the shift, peaked on the worker's own time, or was present at hire.
Statutory defenses. Consider N.J.S.A. 34:15-7, which bars compensation for injury caused by intoxication or by willful negligence. A neural log showing impairment in the minutes before a fall, or an alertness score below a vendor-defined threshold, will be offered as proof of a self-inflicted or non-work cause. That threshold was set for a commercial safety product. It was never validated for adjudicative use, and no one has asked it to be.
Pre-existing condition and apportionment. Neural monitoring can surface a neurological or psychiatric condition the worker never knew about and never disclosed. Under N.J.S.A. 34:15-12(d), that becomes an argument for credit against a later award. It also becomes the raw material for an occupational disease defense under N.J.S.A. 34:15-31 grounded in personal risk rather than the conditions of employment.
Discovery. Once the data exists, it is discoverable. Expect subpoenas directed at the vendor rather than the employer, because the vendor holds the raw signal and owns the model. The worker will typically have no contract with the vendor, no access to the underlying file, and no practical ability to challenge the algorithm that scored them.
Return to work and temporary disability. A neural fitness-for-duty score is a tempting substitute for a treating physician's release, and considerably cheaper. A claimant cleared by a doctor but flagged by a headset is a claimant whose temporary benefits are about to be litigated.
Underwriting and premium. Carriers price risk. Aggregate neural data on a workforce is an underwriting input, and individual-level data is a claims-handling input. Illinois Senate Bill 2994, pending in the 104th General Assembly, would amend the Genetic Information Privacy Act to bar insurers from using neurotechnology data for nontherapeutic purposes or underwriting, and to bar employers, employment agencies, labor organizations, and licensing agencies from requesting, requiring, or using it in employment decisions, effective January 1, 2027. That is the correct instinct. It is also sitting in the Senate Executive Committee.
Retaliation. A worker who declines the headset, or who objects to how the output is being used, is a worker whose subsequent treatment implicates N.J.S.A. 34:15-39.1.
Exclusivity Will Not Protect Employers
The most consequential doctrinal point is one employers will not welcome.
In McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511 (Feb. 3, 2022), the Illinois Supreme Court held unanimously that the exclusivity provisions of the Illinois Workers' Compensation Act do not bar a claim for statutory damages under the Biometric Information Privacy Act. The employer had required fingerprint scans for timekeeping without the statutory notice, retention policy, or written release. Applying the framework of Folta v. Ferro Engineering, 2015 IL 118070 (Nov. 4, 2015), the court asked not whether compensation was literally available, but whether the type of injury categorically fits within the purview of the Compensation Act. It does not. The personal and societal injuries caused by a privacy violation differ in nature and scope from the physical and psychological work injuries the act was built to absorb.
The consequence is structural rather than incidental. Neural monitoring conducted without valid consent produces an injury the compensation bargain never bought. The employer retains the exclusivity shield for the fall from the scaffold and loses it for the data taken off the worker's scalp on the way up.
Cothron v. White Castle System, Inc., 2023 IL 128004 (Feb. 17, 2023), supplies the scale. A separate claim accrues each time biometric data is collected or disclosed without compliance. Applied to a device sampling a worker's brain activity continuously across a shift, per-violation accrual is not a litigation risk; it is an existential one. And Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019), confirms that no actual damage beyond the statutory violation is required to bring the suit.
Illinois's biometric statute does not, by its terms, reach brainwaves. That is a drafting accident of 2008, not a considered policy judgment, and legislatures are now correcting it.
The Guardrails That Exist Today
The map, as of September 2026:
Colorado enacted House Bill 24-1058 on April 17, 2024, effective August 7, 2024, expanding sensitive data under the Colorado Privacy Act to include biological data, and defining neural data as information generated by measurement of the activity of an individual's central or peripheral nervous systems that can be processed by or with the assistance of a device. Colorado was first in the nation and first in the world.
California amended the California Consumer Privacy Act in 2024, through Senate Bill 1223, to treat neural data as sensitive personal information. Assembly Bill 1883 would now add the employment-specific prohibition.
Montana took a different route. Senate Bill 163, effective October 2025, amended the state's genetic privacy statute rather than a consumer privacy law, and requires law enforcement to obtain a search warrant before accessing neural data.
Connecticut signed Senate Bill 1295 on June 24, 2025, adding neural data to the sensitive data category of the Connecticut Data Privacy Act effective July 1, 2026. Its definition reaches only central nervous system activity, which leaves peripheral wearables outside the statute.
Bills are pending in Virginia, Illinois, New York, Vermont, and Alabama, on at least four different structural models.
Federal law offers nothing. The MIND Act, S. 2925, introduced September 24, 2025, by Senators Cantwell, Schumer, and Markey, would direct the Federal Trade Commission to study neural data governance and recommend a framework. It is a study bill. It has not moved out of committee.
Internationally, UNESCO's 194 member states adopted the Recommendation on the Ethics of Neurotechnology on November 12, 2025, the first global standard-setting instrument in the field. It warns specifically against the use of neurotechnology in the workplace to monitor productivity or to build data profiles on employees, and insists on explicit consent and full transparency. It is not binding on anyone.
Note what every one of these instruments has in common. They are consumer privacy laws wearing a workplace hat. Not one of them addresses the compensation system, the claims file, or the hearing room.
Guardrails Worth Legislating
A workable statute, at the state level or as a federal floor, needs eight elements.
1. A categorical employment-decision ban. Neural data may not be requested, required, purchased, or used in hiring, promotion, discipline, discharge, assignment, or return-to-work determinations. Illinois SB 2994 already contains serviceable drafting.
2. Purpose limitation to real-time safety. The only defensible workplace use is an alert to the worker, in the moment, that they are impaired. That use requires no retention. Process on the device, alert the wearer, discard the signal.
3. No individual-level employer or carrier access. Safety analytics can be aggregate and de-identified. Nothing about accident prevention requires a supervisor, an adjuster, or an underwriter to see a named worker's brainwave record.
4. A compensation-specific evidentiary bar. Neural data and the inferences drawn from it should be inadmissible in workers' compensation proceedings, and unusable in claims administration and underwriting, absent validation to a recognized scientific reliability standard. A vendor's proprietary alertness score is not a medical opinion, and treating it as one imports an unexamined algorithm directly into the fact-finding function.
5. Consent that means something. Employment may not be conditioned on it, refusal may not be a disciplinary event, and no consent form may waive any right under the compensation act.
6. Retention limits with teeth. A published destruction schedule, mandatory deletion, and a private right of action on the Illinois biometric model, which remains the only privacy enforcement mechanism in the United States that has measurably changed employer behavior.
7. Vendor liability. The processor holds the data and builds the model. Obligations that stop at the employer's door will be defeated by outsourcing before the ink dries.
8. Bargaining rights. Deployment of neural monitoring should be a mandatory subject of bargaining. Farahany recounts an Australian mine where the workforce, exercising a contractual right to review new workplace technology, kept SmartCap out entirely. That is a functioning guardrail, and it presently exists nowhere in American law.
What Practitioners Should Do Now
Ask the question. Discovery in any claim involving a transportation, mining, construction, utility, or continuous-process employer should include an interrogatory on wearable and fatigue-monitoring systems, the vendor's identity, the categories of data retained, and the retention schedule. Most claimants have no idea that the device on their head is recording anything at all.
Object early. Preserve a reliability objection to neural evidence before its admission becomes routine. Evidentiary practice hardens quickly, and the first few unopposed admissions will set the pattern for a decade.
Read the statute where the client actually works. As of today the answer differs materially in Colorado, California, Montana, and Connecticut, and it is about to differ again.
Conclusion
Workers' compensation was built on a bargain about bodies. The employer accepted liability without fault, the worker surrendered the tort action, and the currency of the exchange was physical injury that could be seen, measured, and rated. Neural monitoring introduces a category the bargain never priced, evidence drawn from the one place the employment relationship was never supposed to reach.
Farahany's argument is that the window for setting terms closes while the problem still looks theoretical. California's Legislature has now acted, and whether the Governor signs is a question of days. Whether the rest of the country notices before this data is sitting in the claim file is a question of years, and those are the years that will matter.
Sources
1. California Assembly Bill 1883 (2025-2026 Reg. Sess.), Workplace surveillance tools, bill text and status, LegiScan. https://legiscan.com/CA/text/AB1883/id/3452186
2. California Assembly Bill 1883, official bill information, California Legislative Information. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260AB1883
3. California ban on workplace AI emotion surveillance heads to Newsom's desk, HR Dive, Aug. 31, 2026. https://www.hrdive.com/news/california-ban-on-workplace-ai-emotion-surveillance-heads-to-newsom/829207/
4. Nita A. Farahany, The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology (St. Martin's Press 2023). https://books.google.com/books/about/The_Battle_for_Your_Brain.html?id=FFdrEAAAQBAJ
5. Nita Farahany, interview, Neurotech's Battles Impact Our Brains' Future, IEEE Spectrum, Apr. 2023. https://spectrum.ieee.org/neurotechnology-battle-for-your-brain
6. The Battle for Your Brain, with Nita A. Farahany, Carnegie Council on Ethics in International Affairs, Mar. 2023 (SmartCap deployment and the Australian mine union example). https://www.carnegiecouncil.org/media/series/aiei/battle-brain-nita-farahany
7. Fighting for our cognitive liberty, Harvard Gazette, Apr. 2023. https://news.harvard.edu/gazette/story/2023/04/we-should-be-fighting-for-our-cognitive-liberty-says-ethics-expert
8. McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511 (Feb. 3, 2022). https://law.justia.com/cases/illinois/supreme-court/2022/126511.html
9. Cothron v. White Castle System, Inc., 2023 IL 128004 (Feb. 17, 2023). https://law.justia.com/cases/illinois/supreme-court/2023/128004.html
10. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019). https://law.justia.com/cases/illinois/supreme-court/2019/123186.html
11. Folta v. Ferro Engineering, 2015 IL 118070 (Nov. 4, 2015). https://caselaw.findlaw.com/il-supreme-court/1717379.html
12. Colorado House Bill 24-1058, Protecting the Privacy of Individuals' Biological Data, signed act. https://content.leg.colorado.gov/sites/default/files/2024a_1058_signed.pdf
13. Colorado House Bill 24-1058, introduced bill with legislative findings on neural data. https://content.leg.colorado.gov/sites/default/files/documents/2024A/bills/2024a_1058_01.pdf
14. Colorado Amends Privacy Act with H.B. 1058, Adding New Protections for Biological and Neural Data, Hunton Andrews Kurth, 2024. https://www.hunton.com/privacy-and-cybersecurity-law-blog/colorado-amends-privacy-act-with-h-b-1058-adding-new-protections-for-biological-and-neural-data
15. US States Build Patchwork of Neural Data Privacy Laws as BCI Market Accelerates, Inside BCI, Apr. 3, 2026 (Montana SB 163, Connecticut SB 1295). https://insidebci.com/policy/2026-04-03-us-states-build-patchwork-of-neural-data-privacy-laws-as-bci-market-accelerates/
16. Your Brain, Their Rules: The Growing Patchwork of Neural Data Regulation, Cooley LLP, Feb. 23, 2026. https://www.cooley.com/news/insight/2026/2026-02-23-your-brain-their-rules-the-growing-patchwork-of-neural-data-regulation
17. Illinois Senate Bill 2994 (104th Gen. Assemb.), Genetic Privacy, Neurotech, bill status. https://www.ilga.gov/ftp/legislation/104/BillStatus/HTML/10400SB2994.html
18. Illinois Senate Bill 2994, summary, LegiScan. https://legiscan.com/IL/bill/SB2994/2025
19. Sens. Cantwell, Schumer, Markey Introduce Legislation to Shield Americans' Brain Data From Exploitation, U.S. Senate Committee on Commerce, Science and Transportation, Sept. 24, 2025 (MIND Act, S. 2925). https://www.commerce.senate.gov/2025/9/sens-cantwell-schumer-markey-introduce-legislation-to-shield-americans-brain-data-from-exploitation
20. Senators ask FTC to study neurotechnology's promises, implications, IAPP, Oct. 2025. https://iapp.org/news/a/senators-ask-ftc-to-study-neurotechnology-s-promises-implications
21. UNESCO, Recommendation on the Ethics of Neurotechnology, adopted Nov. 12, 2025, full text. https://www.unesco.org/en/legal-affairs/recommendation-ethics-neurotechnology
22. Ethics of neurotechnology: UNESCO adopts the first global standard, UNESCO, Nov. 2025 (workplace monitoring and employee data profiles). https://www.unesco.org/en/articles/ethics-neurotechnology-unesco-adopts-first-global-standard-cutting-edge-technology
23. Riva et al., Neurosurveillance in the workplace: do employers have the right to monitor employees' minds?, Frontiers in Human Dynamics (2023). https://www.frontiersin.org/journals/human-dynamics/articles/10.3389/fhumd.2023.1245619/full
24. Brain monitoring may be the future of work, The Conversation, Jan. 2026. https://theconversation.com/brain-monitoring-may-be-the-future-of-work-how-its-used-could-improve-employee-performance-or-worsen-discrimination-244379
25. N.J.S.A. 34:15-7, 34:15-12(d), 34:15-31, and 34:15-39.1 (New Jersey Workers' Compensation Act). https://law.justia.com/codes/new-jersey/title-34/section-34-15-7/
Recommended Citation
Gelman, Jon L., Your Brain Clocks In, WORKERS' COMPENSATION, workers-compensation.blogspot.com (Sept. 1, 2026),
Jon L. Gelman of Wayne, NJ, is the author of NJ Workers' Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers' Compensation Law (West-Thomson-Reuters).
Blog: Workers' Compensation
LinkedIn: JonGelman
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© 2026 Jon L Gelman. All rights reserved.
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