The growing range of tools and techniques used for monitoring prompted Coworker.org, a non-profit worker rights group in the US, to database of the hundreds of products used to manage and monitor workers across all industries.
“We have identified over 130 different employee monitoring products in the workplace and are discovering new ones almost every week,” said Wilneida Negrón, director of policy and research at Coworker, and author of the new database and an accompanying report.
“Covid has ushered in a period of rapid technology innovation, so we wanted to collect as much information about all of the technology products currently being used in the workplace in order to understand how the industry as a whole was evolving and the implications for workers,” said Negrón.
“What we have found by looking at the industry … is that there is a growing unregulated marketplace of these types of products and increased need for safeguards and protections for workers.”
Does existing law protect workers?
Rules around employee monitoring vary from country to country, though it’s typically legal to monitor staff in the workplace and employers are required to have good reason to do so. In the US, the Electronic Communications Privacy Act (ECPA), passed in 1986, allows employers to monitor activities on company-owned devices without alerting workers, though some states such as Delaware, Connecticut and, most recently, New York, have introduced more stringent rules that require notification when monitoring email and other communications.
There are growing calls for stronger legislation to address the new technologies being used in the workplace. For example, last month, the White House Office of Science and Technology Policy called for an “AI bill of rights” to protect citizens against powerful AI tracking and decision-making technologies, both at work and more widely across society, including in the workplace.
This would “clarify the rights and freedoms” around the use of data-driven technologies in a range of areas, including “freedom from pervasive or discriminatory surveillance and monitoring in your home, community, and workplace.” A public consultation on the issue is now under way.
With the influx of new technologies coming to market, Negrón said that safeguards around employee monitoring need to be strengthened in the US.
“As we struggle to pass a national consumer privacy legislation, discussions around rights and protections for employees in the workplace are beginning to happen but [are] still at a very early stage,” she said. “Meanwhile, regulators have not and are not keeping up with the proliferation of this unregulated marketplace of tech products that has been expanding during COVID.”
In the absence of federal or state legislation and regulatory action, the onus falls on employers to create an open workplace culture, she said, though there’s a lack of awareness about the issue. “Through conversations with workers, we have found that most are not even aware of what products are monitoring them,” said Negrón. “So employers are missing a key opportunity to engage their workers, listen to concerns, and together co-design safeguards.”
Calls for digital worker rights in the EU and UK
In Europe, the General Data Protection Regulation (GDPR) allows companies to monitor employee communications in certain circumstances, but requires that workers are notified and fully aware that monitoring takes place.
Companies that have broken GDPR rules have seen stiff fines. The German subsidiary of retail company H&M was hit with a €35.2 million fine last year for excessive surveillance of employees in relation to records kept on staff, while a German laptop seller was fined €10.4m by the state regulator for constant video surveillance of its workers in January. In the UK, banking firm Barclays is under investigation by regulators for its use of software to track staff computer activity, which may contravene GDPR rules.
Calls for new rules to protect workers continue to grow in the face of rapid innovation. The UK’s All Party Parliamentary Group for the Future of Work recently published its final report on algorithmic management across various industries, warning of the impact of excessive monitoring on worker well-being and saying the issue is now a key concern around workplace technologies.
The All-Party Parliamentary Group (APPG) said that the “use of algorithmic surveillance, management and monitoring technologies that undertake new advisory functions, as well as traditional ones, has significantly increased during the pandemic."
It also highlighted the effects pervasive monitoring and target-setting can have on physical and mental health: “...A growing body of evidence points to significant negative impacts on the conditions and quality of work across the country,” the report said.
To address those concerns, the APPG proposes new employee rights, with an “accountability act” that requires “a full explanation of purpose and outcomes and impacts of algorithmic systems at work,” alongside new transparency requirements placed on employers. This would give workers insights into the use of AI to “monitor, allocate work, pay and discipline workers.”
Pakes, who contributed to the APPG report, said Prospect would like to see a tougher regulatory stance on new technologies that could have adverse effects.
“We'd like to see regulations to ensure that digital technology is used fairly in the workspace, backed with stronger rules around specific types of technology [that] are invasive, such as facial recognition software and the new growth in emotion recognition software,” he said.
Given its widespread use, employee monitoring is an issue that more and more workers will face, said Negrón: “It’s safe to say that at some point, all of us will come in contact with technology products that will be monitoring us in different ways in the workplace.”