Privacy Shouldn't Clock Out When You Clock In: 2022 in Review

EFF continued to expand our work on technology issues in the workplace in 2022. We first renewed our attention to worker privacy when the specter of “bossware”—tracking software on work devices—reared its ugly head at the start of the pandemic.

Since then, EFF has joined with those in the labor community to learn more about surveillance in the workplace and on work devices, and the effect it has on employees. Particularly as regulators start to pay more attention, and legislators include workers’ privacy in general consumer privacy bills, it’s important to understand the ways that the workplace presents unique challenges in this arena.

Bossware has Real Effects on Workers

As white collar remote workers felt bossware breathing down their necks, there was more coverage than ever of how employers are monitoring the workforce, and the lasting effects it has on workers’ health, safety, livelihood, and collective bargaining rights. Even for remote staff, these stresses affected their mental health and family responsibilities. But it is workers across all fields that have increasingly felt the heat of surveillance, and some of the coverage was propelled by blue collar workers who fought back, from meatpacking facilities to service workers to delivery drivers who experienced increased surveillance as a form of retaliation for wage demands. Neither the ineffectiveness nor the impact on real people calmed employers’ desires for increasing means to monitor and control worker behavior, with some even floating a database on worker productivity. Courts and agencies in other countries, like the Netherlands, have been quicker to take on U.S. firms who they allege have violated the human rights of foreign remote workers with demands on their acquiescence to invasive monitoring.

While collective bargaining and union action is often the best solution to securing rights in the workplace against unreasonable and unaccountable punitive technologies, surveillance is also a bar to those solutions, as it sets up workers for unlawful retaliation for attempting to exert their right to organize. This is the first place that federal regulators—and, by extension, state and local governments—have grounds to step in.

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The Department of Labor and the NLRB Start to Take on Workplace Surveillance

As some senators called on federal agencies charged with workplace regulation to do more to protect workers, the Department of Labor and the National Labor Relations Board declared more interest in taking on these complex and constantly changing questions. The Department of Labor openly questioned the biases intrinsic to allegedly unbiased AI technology that monitors and judges workers, following an earlier report from the Department of Justice and the Equal Employment Opportunity Commission that some forms of AI monitoring may violate the Americans with Disabilities Act.

In a recent memo, the general counsel of the National Labor Relations Board (NLRB) called for regulators to protect workers against what she described as “unlawful electronic surveillance and automated management practices.” EFF agrees. The memo’s position suggests two major strategies for increased protection: enforcement of existing workplace protections, like Section 7 of the National Labor Relations Act which bars bosses from retaliating against workers engaged in protected workplace speech about unions, by both the NLRB directly and through inter-agency collaboration; and by exploring the constantly changing bossware landscape and what gaps exist so that federal agencies can begin writing new rules and regulations to protect workers to keep pace with the changing times.

New Consumer Privacy Rules May Include Workers

The power balances and incentives in a workplace scenario are very different from a consumer relationship. As we said in comments responding to the Federal Trade Commission’s (FTC) call for input on privacy issues—which itself included workers in its definition of consumer:

Even when an employer requests consent from an employee before processing their data, the consent frameworks can break down in such situations. Saying “no” to data collection in a consumer context may mean you have to use another company’s service. Saying “no” to your employer could get you fired, or otherwise seriously affect your livelihood.

A company may see some incentive for strengthening consumer privacy if they think it will help make their bottom line. An employer is much more likely to start looking to replace a worker if they raise privacy issues. Yet more workers are speaking out about surveillance, including warehouse workers, drivers, home healthcare givers, and lawyers.

As we told the FTC, we generally agree with the principles set out in the 2021 report of the University of California’s Labor Center “Data and Algorithms at Work: The Case for Worker Technology Rights.” The report lays out several principles for worker rights. For example, worker data should only be collected when it is necessary and closely related to the tasks of an employee’s job. It should be used only for the purposes for which it was collected. Similarly, workers should be given clear notice about how and why data are being collected, especially if it will be used in a way that could materially affect their working conditions, such as for performance evaluation or discipline. Indeed, most bossware is punitive, and meant to penalize workers or drive them to work harder and take fewer breaks. This stress in turn drives up workplace injuries and mental health effects

State Laws Can Protect the Rights of Workers

We were also proud to join California’s leading labor groups in supporting A.B. 1651, authored by Assemblymember Ash Kalra. This bill would have taken important first steps in providing workers with information about monitoring in the workplace and planted an important flag in demonstrating what privacy rights workers need.

This issue will continue to gain momentum in the coming years. We look forward to continuing to work with a number of allies to advocate for the rights of workers from potentially unlawful attempts by employers to monitor and control us all.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2022.

Hayley Tsukayama is Senior Legislative Activist at the Electronic Frontier Foundation, focusing on state legislation. Prior to joining EFF, she spent nearly eight years as a consumer technology reporter at The Washington Post writing stories on the industry’s largest companies.

José is a longtime trainer and agitator. You may remember him from such workshops as How Not to Talk to Law Enforcement and Grand Jury Resistance for the Soul.

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