I. COVID Leave Laws
The state responses to the COVID-19 pandemic have been less than protective of worker rights and health. Workers have been severely impacted and put under even greater health and economic strains than they were experiencing before the emergence of COVID-19. Unfortunately, the pandemic appears to be an ongoing public health crisis. The fact that sick leave laws have not been up to par has left workers stranded without adequate protection against health concerns they have little control over.
Although the Families First Coronavirus Response Act (FFCRA) was passed at a federal level, it only gave employee leave until December 31st, 2020. Out of the fifty states and territories, only seven states or territories introduced statewide initiatives that extended or built upon the FFCRA. The states with the most extended protection through COVID sick leave laws, California, New Jersey, and New York, have continuously extended both sick leave and paid time-off to obtain vaccinations for workers. For example, New York law covers all private and public sector workers ordered to quarantine and mandates paid sick leave through the current year, 2022. Employees are also given dedicated sick leave for their own vaccinations and side effects, including booster shots, and for when their children are receiving vaccinations and experiencing side effects. Although these provisions provide better protection for employees against job loss because they do not have paid sick leave or time off to protect themselves with vaccinations, these protections are limited to only the three states that have enacted such similar laws.
The COVID-19 pandemic continues to pose a problem due to the appearance of new variants that have higher likelihoods of infection. There have been federal, state, and local requirements for quarantining and isolating after exposure and infection with COVID-19. However, more cities, states, and localities are moving toward eliminating or relaxing some of those requirements. Despite that trend, employees are still expected to quarantine or isolate after exposure or infection, but are severely lacking in guaranteed sick leave. Although California, New Jersey, and New York have repeatedly extended sick leave and paid time off for obtaining vaccinations, they are the only states that have done so to this extent. Other states rely on private employer decisions and do not guarantee sick leave for all employees. This patchwork system of laws has severely affected employment prospects and retention for women and people of color. These trends have also aligned with further economic hardship through food insecurity and housing shortages for women and people of color.
The pandemic is ongoing, and workplaces are still drastically affected by labor shortages due to employees falling sick, including employees still affected by “long Covid.” Employees cannot continue to work without sick leave, but, in a nation where sick leave is no longer required for a public health crisis that continues to keep employees away from work, there is only a vicious cycle for employees who fall sick and cannot keep up with their bills.
II. Surveillance Post-COVID
Remote work existed before the COVID-19 pandemic and will continue to exist after the pandemic, but it significantly expanded because of the pandemic. To facilitate that remote work, employers have expanded the use of technological surveillance of employees. The technological advancements in workplace surveillance that occurred during the pandemic will lead to an increase in monitoring in workplaces everywhere, not just for remote workers, even post-pandemic. However, such monitoring was proven to be detrimental and discriminatory towards workers even before remote work was a norm, and an increase in remote work post-pandemic will result in further injustices towards workers. The upward trend in surveillance is worrying. Workplace surveillance should be curbed and its impacts minimized to protect workers from fraudulent monitoring through legislation granting new, and more clearly defined, privacy rights, to workers.
A. Workplace Surveillance: Past and Present
Workplace surveillance, also referred to as “employee monitoring,” has been around since the mid-nineteenth century. Due to the rise of Taylorism, it became the rule that “the unobserved worker is an inefficient one.” Before the pandemic, drivers and other workers were monitored through GPS systems and AI-monitored cameras, and computer surveillance technology allowed employers to monitor employee usage of technology. Cell phone monitoring and web browser monitoring has been widely used since even before 2007. Additionally, even though employer social media monitoring was widespread, its utility was debated.
The dangers of this workplace surveillance are well illustrated by Amazon’s surveillance, intruding upon the privacy of workers through excessive monitoring. For example, to meet demand for same-day deliveries, Amazon has been using video monitoring to pressure workers to keep up a high pace and to keep workers from unionizing to protect themselves from the dangerous conditions that result. Surveillance of delivery drivers has resulted in dangerous driving conditions, which have led to worker and pedestrian deaths. Additionally, Amazon utilizes surveillance inside its warehouses, monitoring workers’ every move to keep them working every moment of their shift. This includes tracking when workers go to the bathroom and interrogating workers’ whereabouts during their shifts. Workers can be fired for accumulating thirty minutes of time off task on three separate days over a one-year period. Occupational Safety and Health Administration inspectors found that work processes at several Amazon warehouses are designed for speed and not safety. The monitoring within warehouses contributes to making sure that workers are working in spite of the nature of the work that “increases the risk of injury” when done at a fast pace. This monitoring does not take into account accommodations for workers with health issues. For example, workers are “harassed” for taking longer in the bathroom due to irritable bowel syndrome. The monitoring of their time spent can result in their symptoms being written up as “unaccounted idle time.”
All of these technologies were in place before the COVID-19 pandemic, but their negative effects have only been exacerbated because of the new remote work policies instituted at the beginning of the pandemic. With the increase in remote work, employers also have increased their surveillance of employees no matter where they are, as work rapidly transitions to digital and tech devices, which are easier to monitor through applications and tracking software, including browser history and desktop activity. Remote work can be beneficial towards driving economic growth post-pandemic, as it maintains access to work that is not location-dependent. Currently, an estimated fifty-six percent of the workforce perform jobs that are compatible with working remotely. There is a clear benefit in remote work for many people; it is cost-efficient, saves commute time, and is a preferable alternative for many people. It is clear that remote work and other new work policies regarding surveillance that were implemented due to the pandemic will continue on after the pandemic is over. Even if companies do not increase levels of remote work post-pandemic, employer surveillance and employee monitoring had been increasing before the pandemic. Surveillance technology has rapidly advanced during the pandemic, from government surveillance technologies and biological monitors to workplace tracking software. Watching and monitoring employee usage of technology and other spaces have become easier than ever.
B. Workplace Surveillance Displacing Labor Laws
Though workplace surveillance has become simpler for employers, the consequences are becoming even more severe for employees. Whether it is monitoring electronic devices and communications through remote work structures or physically monitoring employees’ whereabouts, all of these methods have detrimental effects on workers, to the extent they violate the National Labor Relations Act (NLRA). Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Additionally, section 8(a)(1) disallows an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” In theory, this should mean that workplace environments should not be hostile towards the concept of unionization, collective bargaining, or any other employee gathering for the purposes of mutual aid or protection. Workers should not fear employer retaliation in order to unionize or organize, yet the pervasive surveillance of work makes workers fear that possibility.
The problems that workers face are compounded by the fact that the current regime of privacy rights consists of a patchwork amalgamation of statutes that recognize privacy rights when workers behave as consumers, but not as employees. Currently, workplace surveillance is legally allowed as long as it covers an area that is related to work and where workers would have no reasonable expectation of privacy, especially if it is video surveillance without audio. The main statute that governs workplace monitoring directly is the Electronic Communications Privacy Act of 1986 (ECPA). However, ECPA follows the business purpose exception and the consent exception, which allow employers to monitor oral and electronic communications as long as there is 1) a legitimate business purpose or 2) employees have consented to being monitored. In general, business premises are seen to invite lesser expectations of privacy than personal residences do. The concept of business premises extends to virtual space, as well, so that employer monitoring of employee emails and communications is legally allowed as long as employees are notified and the monitoring is for business purposes.
The other cyber statutes of the late twentieth century provide no real solace for workers looking to be shielded from unwanted privacy intrusions in the workplace. For example, Computer Fraud and Abuse Act of 1986 (CFAA) follows a paradigm similar to ECPA regarding privacy law. Taken together, ECPA and CFAA were meant to protect people who owned data and other electronic property from unwanted security incursions, and also allowed for users to provide consent. Since employers use their superior economic power to obtain consent from their employees, these statutes do not provide real protection. Congress did not address workplace protection specifically because the issues that society is confronting today had not presented themselves in the nascent days of Internet technology. In many ways, Congress’s treatment of surveillance is one that is based on the theoretical framework undergirding contract law, rather than recognizing a non-waivable, or at least difficult to waive, right to privacy for workers.
Similarly, consumer privacy laws in the United States provide no real sanctuary for workers. For example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides privacy protections for consumers of health care but does not cover employers, as employers are not covered entities under that statute. Similarly, the California Consumer Privacy Act (CCPA) provides legal protection for California residents who consume social media products and make purchases online. No jurisdiction within the United States even provides a real framework for privacy from employer surveillance, or a presumption in favor of workers.
The presumption in the United States stands in marked contrast to the European Union’s General Data Protection Regulation (GDPR). Even though the GDPR provides strong consumer data protections for consumers that are similar and, in some cases stronger than what the CCPA provides, the GDPR explicitly mentions collective bargaining. Specifically, Article 88 of the GDPR provides protections for data processing in the employment context. Paragraph 1 of Article 88 is especially instructive. It states:
Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, protection of employer’s or customer’s property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.
However, the United States has failed to act in so comprehensive a manner. Because of that failure, many employers had been engaging in acts that the National Labor Relations Board (NLRB) should hold have interfered with, restrained, and coerced employees from unionizing or other forms of protection even before surveillance became more common throughout the pandemic. For example, Amazon not only uses its surveillance to track worker productivity, but also to curb unionization efforts by monitoring worker activism. With the intensification of remote work and online calls due to the pandemic, it has become much easier for employers to crash employee unionization efforts done over Zoom meetings.
These methods have proven to be highly effective, given that large corporations that employ surveillance have defeated most attempts by workers to collectively bargain. Studies have proven that “[w]e act differently when we know we’re on camera.” Being constantly watched yields better work because workers know they are being watched—workers thus only do what is expected of them. Faced with the scrutiny of employers, many employees will feel the need to hide their identities in fear of retribution. However, other studies have demonstrated that even though employers believe that surveillance increases production, it also affects worker health and their physical safety. The use of surveillance to monitor workers and set unrealistic goals that negatively impact their well-being serves as an impetus for workers to come together to form a union.
Large corporations have continuously used their monitoring and surveillance technologies to prevent workers from feeling like they work in an environment that encourages them to consider unionization, collective bargaining, or other forms of mutual aid without retaliation. Employers have been using more and more monitoring software to meet the increase in usage of remote work technologies throughout the pandemic, and will continue to do so as remote work becomes a new workplace norm post-pandemic. While this type of activity may be against the NLRA, the fact that most employers evade restrictions by obtaining consent from workers undermines most attempts to bring surveillance claims. Although workplace surveillance is becoming more of a norm, employees fear retaliation for unionization efforts due to the constant monitoring from employers. This trend must be stopped to protect workers’ rights, especially as workers agree to have work apps placed on their personal devices pursuant to Bring Your Own Device (BYOD) policies, especially for those without a union.
A BYOD policy allows workers to use their own device, and upload employer applications in order to facilitate work. In some cases, workers will receive a stipend or reimbursement from their employer to make up for the costs that workers incur in using that device. The reason that some employers institute this policy is to allow workers to use their favorite device to interface with employer resources instead of force an interface tool on employees. It may save money for employers because they do not have to incur the costs of obtaining time-saving devices for their employees. Of course, this type of arrangement opens up employees to privacy concerns. Most telling, the Society for Human Resource Management’s (SHRM) model BYOD policy explicitly states that “[n]o employee using his or her personal device should expect any privacy except that which is governed by law.” The proliferation of these policies, when coupled with the fact that more workers are working from home, means that employers now have even better opportunities to intrude into workers’ private affairs using work devices as a gateway. This risk is especially heightened given the uneven patchwork of privacy laws in the United States. Unions have been able to negotiate protections against unwanted intrusions. However, not every worker in the United States can enjoy the ability to collectively bargain with their employers over these matters because union density stands at only 10.1% of the workforce.
C. Additional Negative Impacts of Workplace Surveillance
Employer monitoring serves to widen inequality gaps among the workforce. The pandemic has already made things more difficult for women and people of color, and especially for women of color, and now surveillance technology will exacerbate the difficulties. People of color disproportionately make up surveilled occupations, such as drivers, cashiers, and truckers. Technologies such as “emotional regulation” systems that regulate workers through voice or facial expressions present significant race and sex biases. They are especially bad at interpreting Black women’s faces and voices, along with those of other people of color. An increase in surveillance technology only serves to increase the gap between the most underrepresented and underserved populations that are already facing increased difficulties and obstacles from the pandemic itself. Legal violations against Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, and more have been violated through the use of surveillance technologies.
Workplace monitoring also has resulted in “significant increases in job stress and decreases in job satisfaction and job security,” with increasing concerns among workers about their privacy rights. The multitudes of monitoring technologies, from time tracking to communications tracking to biometric tracking and more, blur the lines between work and home now that workplaces have moved remotely to homes. This impacts workers’ personal senses of safety and privacy, now that they are constantly tracked within their own homes. Privacy is a matter of justice, and workers should have the right to privacy, especially in their own homes.
III. Next Steps
Current workplace policies that have arisen and been exacerbated by the COVID-19 pandemic are only serving to continuously deny employees their labor rights. Several ways exist to curb and stop this trend as remote and surveillance policies grow.
There needs to be strong, national level legislation to protect workers through sick leave laws and other employment benefits regarding the impacts of the COVID-19 pandemic. COVID-19-leave protection must be expanded to protect employees, and especially employees of color who have been most heavily hit economically by the pandemic, to rest, maintain good health, and take care of their families without the fear of losing their jobs. Stronger unemployment programs should be in place for those who have lost their jobs due to the pandemic and a lack of sick leave.
Additionally, workplace surveillance continues to be a major problem for workers. Unions need to bring these matters up at the bargaining table. However, such efforts need congressional action and a comprehensive strategy that is beyond the scope of any one enterprise to handle. Workers should be given a significant voice in shaping and deciding the technologies being used in their workplaces through their guaranteed right to collective bargaining. Employers should be prohibited from using worker management software that has already been shown to or likely to harm workers’ health, safety, or well-being or that makes unfair and discriminatory inferences about workers. A good place to begin to look for a framework would be Article 88 of the GDPR. However, Article 88 is a point of departure—it is not meant to be a complete and comprehensive framework.
As one of us has written separately in a different capacity, a comprehensive framework should have a Bill of Rights. Recently, SEIU asked the Office of Science and Technology Policy to adopt the following framework based on work done by the Berkeley Labor Center.
That letter called for the following things:
- Workers should have a significant voice in shaping the adoption and use of these technologies in their workplaces through collective bargaining.
- Employers must be prohibited from data collection, surveillance, and predictive technologies to interfere with workers’ protected rights to speak out and take collective action in their workplaces.
- Workers should not be continuously subjected to monitoring.
- Employers should be prohibited from using algorithmic workplace or worker management software where they are shown or likely to harm workers’ health, safety, or well-being; or for the purpose of making irrelevant, unfair, discriminatory, or scientifically questionable inferences about workers.
- Algorithmic technologies or surveillance technologies such as facial recognition software should be banned from use in workplaces.
- Employers should not use AI technologies to engage in discrimination against workers based on characteristics protected in human rights and equal opportunity law, whether that occurs through outright discriminatory treatment or through disparate impact.
- Robust oversight and enforcement should be in place to protect workers from these technologies.
Conclusion
The COVID-19 pandemic has severely impacted workers’ rights, and the laws issued to protect workers have been less than satisfactory, instead creating even more irreparable harm to workers’ rights. The workplace has also been forever changed by the effects of the pandemic. Employer surveillance of workers will only increase in the future, striking a chilling effect into workplaces and preventing workers from unionizing and fighting for their rights. Additionally, employer surveillance is often discriminatory, and will only continue being so. It is imperative that labor unions and organizations work together with labor policy makers to change workplace surveillance laws. Workers’ rights are constantly in danger of being violated due to the increase and proliferation of adverse impacts brought by the lack of sick-leave law and increased workplace surveillance. Even as the pandemic recedes into the background, the impact brought on by increased surveillance will continue well past after officials declare the COVID-19 pandemic over.
