Collective bargaining can counteract intrusive workplace surveillance

Would you talk about your personal life if you thought your boss was recording it? Would you offer to help a coworker if you knew the pause would be logged and possibly penalized? And if just helping a coworker with a task makes you fear for your job, how likely would you be to take a riskier step by discussing shared problems at work, or even joining a union?

Welcome to the increasingly common dilemmas of the modern workplace. At Tesla’s autopilot facility in Buffalo, N.Y., workers weigh bathroom breaks against lost keystrokes, which are totaled and rated. Starbucks’s Genetec camera system provides managers with live feeds from every corner of the cafe, and Amazon warehouse scanners generate alerts if bar codes are read too quickly (suggestive of carelessness) or not quickly enough (suggestive of laziness), with workers fired after three “productivity flags.”

Some companies are normalizing “wearables” like badges that record conversations, locations and moods; or wristbands that track and steer workers’ hands with “haptic feedback.” And in most states, employers are not even required to inform workers or regulators what kinds of data they are gathering, or what they plan to do with it.

Invasive and often secret surveillance harms employees. Beyond the stress, anxiety and paranoia prompted by prison-like observation, productivity auto-policing can weaken the relationships that make work bearable. No one takes a job to make friends, but friendship can be a natural consequence of the casual interactions and occasional breathers that make up the day. Technology is now filling those spaces with a forced choice: ask about a colleague’s weekend, or get back to work to protect a metric. If your job is on the line, keeping quiet is the obvious answer.

Lost in the isolation are not just opportunities for workplace pals but also workplace allies. Dorothy Sue Cobble’s classic study of waitress culture described how “ever-changing social encounters” with customers and near-constant socialization with colleagues created solidarity that protected individual workers. It takes courage to complain, but talk — about the weather, a customer or pay — builds shared perceptions that can lessen the risks to workers of going out on a limb.

There are also other consequences to automated workplace surveillance. Some employers outsource critical employment decisions like whom to fire or whether to grant leave to automated processes. But robo-H.R. is notoriously faulty. Anyone who has tried to get a human on the phone to correct a banking or insurance mistake can likely relate to these experiences, though the stakes for low-wage workers can be their livelihoods.

And surveillance can even make it harder for employees to recover if they are illegally fired, because employers can limit their liability by showing that the worker also committed misconduct — and automated surveillance yields an enormous cache of information that employers can trawl for evidence that an employee-plaintiff broke workplace rules that might otherwise be ignored.

Thankfully, there is one way for workers to effectively push back on creeping workplace surveillance: collective bargaining. Unionized workers have a right to bargain over working conditions, including the extent of employer surveillance. As far back as 1997, the National Labor Relations Board ruled that an employer that unilaterally installed surveillance cameras had violated its legal obligation to bargain collectively with its employees’ union. Importantly, unionized workers can also negotiate limits on what employers may do with information they amass, as well as fair rules about the pace of work, breaks and discipline.

But workers have to unionize before they can bargain collectively. And intrusive workplace surveillance can create a kind of doom loop, chilling workplace communications and preventing union drives from getting off the ground.

Federal labor law dates back to 1935, and employer surveillance was a problem then, too. As a result, the NLRB has long held that it violates labor law for employers to surveil employees for the purpose of deterring their collective action.

That rule may have been adequate when employers were limited to physically watching employees, or perhaps installing a camera or two. But today’s technology has outpaced the existing rules and requires a new approach. At a minimum, employers should be called on to justify their use of surveillance technology that can chill union organizing, and to explain why they cannot use less-intrusive measures instead.

The good news is that the NLRB’s chief prosecutor agrees that cutting-edge technology should not be policed by outdated laws. And workers and unions are beginning to raise the issue — a group of Amazon warehouse workers just filed a charge arguing that the company’s surveillance methods interfere with their labor rights.

As a poster child for intrusive surveillance, it would be poetic justice for a case brought by Amazon workers to yield new restrictions on workplace spying. It might also help workers talk, make a new friend or even one day collectively bargain for a say in who — or what — watches them work.

Charlotte Garden is the Julius E. Davis Professor of Law at the University of Minnesota Law School. She is the author of an article on surveillance and workplace rights. Michael Oswalt is a professor and the associate dean for research and faculty development at Wayne State University Law School. He is a co-author of two labor law casebooks.