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Beware, They're Always Watching: Surveillance in the Workplace

-- By LiliaJimenez - 16 Apr 2021

Introduction

The surveillance state is upon us, and is largely run by privately owned companies that use swaths of behavioral data to fine tune algorithms that lack transparency. Use of such algorithms not only chip away at our right to privacy in our everyday lives, but are used to determine highly consequential opportunities for individuals such as criminal sentencing, access to loans, and employment.

Despite the fact that big tech and data analytics have been mass collecting and profiting off of behavioral data, many individuals remain unaware of the full extent to which their privacy is being handed to companies for their pervasive algorithmic profiling in exchange for mere apps and programs. In class, we have explored how many technological advances lack oversight and regulation as the law is slow to adapt to the new methodologies of tomorrow. This is present in the fourth amendment’s place-iness and the gap of protection citizens have to search and seizure when it comes to things like modern surveillance.

Surveillance and Employment

Companies often want to maximize their efficiency and growth. Some companies do this by adopting open floor workspaces, some glass walls and doors, and others using AI technology or similar employee tracking programs powered by people analytics and big data. A running theme behind these methods is increased employee visibility which is essentially a form of increased employee surveillance. People Analytics is essentially algorithms that are used to identify talent directly linked to driving business value for companies. (https://www.mckinsey.com/solutions/orgsolutions/overview/people-analytics# ). These algorithms, usually paired traditional employment data like observations from an HR team, are also paired with external data, like social networks, to automate decisions throughout the human resources life cycle and assess performance metrics. Many employers have also downloaded software like Hubstaff which includes features like an “activity monitor that gives managers a snapshot of what an employee is doing. Broken down in 10-minute increments, the system tallies what percentage of time the worker has been typing or moving the computer mouse. That percentage acts as a productivity score.” (https://www.nytimes.com/2020/05/06/technology/employee-monitoring-work-from-home-virus.html).

Amazon in the Mix

Most recently, Amazon has come under fire for their working conditions. Workers of the Amazon fulfilment center in Bessmer, Alabama have come together to vote on whether they want to form a union or not. On one end, the company wants to lower labor costs and increase productivity, which “requires measuring and tweaking every moment of a worker’s existence,” while on the other end, workers want to take back control of their bodies as they fear Amazon’s working conditions, largely run and managed through tracking its employee’s every movements, has forced them into inhumane conditions. A 2014 complaint filed by an Amazon employee said employees got 12 minutes a day for “bathroom, getting water, personal calls, etc.” outside of normally scheduled breaks. (https://www.nytimes.com/2021/04/05/technology/amazon-control-bathroom-breaks.html)

Amazon requires its employees to download an app, The A to Z, that tracks their employees actions and whereabouts while working which is used to make inferences about individual employees based on statistical profiling. Amazon’s perspective is that if you’re hard working and you are diligent, you would want to be tracked and want your work to be recognized. Therefore, the level of surveillance and tracking, or people analytics, protects those workers against workers that might be slacking off. (nytimes.com/2021/04/01/podcasts/the-daily/amazon-union-vote-alabama.html?showTranscript=1). While employee surveillance benefits Amazon’s productivity, fundamental human rights are implicated.

In Amazon’s efforts to defend against their employee’s plans to vote on unionization, the company had even requested to require in-person voting and an attempt to add cameras in the ballot-storage room. (https://www.businessinsider.com/amazon-request-cameras-watch-union-vote-bessemer-ballot-boxes-rejected-2021-3 and https://www.businessinsider.com/amazon-union-vote-nlrb-mail-ballots-election-bessemer-alabama-2021-2). Ultimately, voters at the Amazon facility for example, voted not to unionize. This was a huge win for Amazon and other companies and a blow for organized labor (https://www.nytimes.com/2021/04/09/technology/amazon-defeats-union.html). As companies, governments and the world turn more and more to technology to create new solutions and spot inefficiencies, we must take care to preserve norms of individual autonomy, privacy, and due process. A surveillance work state working under the guise of increase productivity goals is not the answer.

Watching and Working from Home

Due to the pandemic working from home has become a norm in many households. While the boundaries of work starting and ending have been muddled without set times entering and leaving an office, so have the boundaries of employee privacy with many employers requiring employee tracking software be downloaded by employees working from home. While many employers have already required such software, it has become so much of a norm there are articles, blogs and reviews about which software is best. (https://www.business.com/categories/employee-monitoring-software/). And, with few legal barriers, employers who turn to this software during the pandemic may choose to keep using it even after work-from-home orders are lifted. Technically, Employers are not running afoul of any federal laws by tracking what their workers are doing all day, every day through surveillance software. Some workers are grappling with whether or not they should be choosing their privacy or a paycheck, and that is abhorrent. There are employees who don’t have the luxury of choice because their survival depends on their paychecks. This, along with the data that is collected and fed to people analytics software, is a direct consequence of the tragedy of the Fourth Amendment not having been adapted to the rapidly advancing modern landscape of the technological world.

Solutions?

Private companies are almost like mini governments themselves and while it may seem like a simple fix would be to give employee’s their voice back and scale back on the invasive employer surveillance, that doesn’t seem to be so likely. Employee has been around for a while and has been expanding. Some employers offer health benefits which use wearable technology to track employees as well. (https://www.bbc.com/worklife/article/20201110-the-rise-of-employee-health- ). Additionally, employers installing employee tracking software, like Hubstaff, increased at the height of the pandemic last summer, with no plans to un-install (https://www.shrm.org/hr-today/news/hr-magazine/fall2020/pages/should-employers-use-software-to-monitor-remote-workers.aspx#:~:text=More%20than%2020%20percent%20of,according%20to%20data%20from%20Gartner.)

Long-term, while we wait for policy and regulation to catch up with technology (hopefully sooner than ten years), it would be best to use more secure devices and programs that don’t give away any of your data, like downloading IP encryption apps or software or using private server systems like Freedom box. In terms of protecting yourself from unnecessary employer surveillance in the short-term, while many do not have the luxury of leaving their jobs, it would be best to minimize any and all devices connected to any employer related programs, when possible.

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