Be compliant for California’s FEHA AI rules

Employers with five or more employees, at least one of them in California, that use automated-decision systems (ADS) in hiring, promotion, training selection, or other employment decisions. A vendor or other third party is covered only when it acts as the employer's agent by performing a function the employer traditionally handles, such as screening or ranking candidates. The rules have applied since October 1, 2025.

An ADS is any computational process that makes or assists an employment decision. In practice that includes resume screeners and automated filtering tools, AI-powered video interview scoring, hiring or ranking recommendations, and performance, promotion, or termination tools. If a system meaningfully influences who gets hired, advanced, or let go, FEHA likely treats it as an ADS.

No — FEHA does not mandate a bias audit. But the regulations make the quality, scope, and recency of bias testing central to liability: proactive anti-bias testing can be raised as a defense to a discrimination claim, while the absence of testing can be used as evidence against the employer. Independent bias audits from Warden AI give employers and vendors that defensible, documented record.

At least four years. That covers the data fed into the tool, the outputs it generated such as scores or rankings, the criteria applied to candidates, and the results of any bias testing or evaluation. The amendments also extended general personnel-record retention to four years, up from two.

Only in a narrow case. The final regulations treat a vendor as the employer's agent, and so potentially liable, when it performs a function the employer traditionally handles, such as screening, ranking, or hiring decisions. Earlier drafts would have extended aiding-and-abetting liability to anyone who builds or sells an ADS; the final text removed that. Primary liability rests with the employer.

FEHA prohibits employment discrimination across 18 protected classes, including race, color, national origin, ancestry, religion, sex, gender identity and expression, age, disability, medical condition, genetic information, marital status, sexual orientation, and military or veteran status. A meaningful bias evaluation should test outcomes across these groups.

The FEHA regulations don't add a standalone candidate-notice requirement. Telling people when AI is used is still good practice, and California's separate CCPA rules on automated decision making technology require pre-use notice for significant decisions from January 1, 2027. Employers must also provide reasonable accommodations on request.

Warden AI provides independent bias audits, time-stamped audit trails, and dashboards and reporting aligned to the regulations — documenting the proactive testing and safeguards FEHA expects. Whether you are a vendor testing pre-market or an employer monitoring a live system, Warden AI gives you evidence of fairness you can show regulators, courts, and procurement teams. The duty applies to employers; it does not extend to companies that only sell or provide an ADS.