Surveillance and Suppression of Union Activity

By Madison Kang

Winner of the 2022 Working Now and Then Undergraduate Scholarship

With two-thirds of American companies monitoring their employees’ internet use, 45 percent logging their employees’ keystrokes, and 43 percent documenting employee emails, Ellen Bayer of the American Management Association has described “privacy in today’s workplace” as “largely illusory.” 

Employer surveillance infrastructures contribute to national trends of dwindling union participation, workers’ decreased stake in corporate restructuring to mitigate job loss and wage cuts, and wage stratification as major corporations direct surveillance efforts towards the prevention of labor activism. For instance, Google employees claimed that the company installed a browser extension that reported employees creating calendar events inviting more than 100 participants or occupying more than 10 rooms—an alleged effort to quell organization and collective activity. 

Likewise, Walmart patented an audio surveillance system that was forwarded as a means of measuring employees’ bagging speed but also tapped employees’ conversations about the Organization United for Respect at Walmart, an organization affiliated with the United Food and Commercial Workers International Union. Walmart also integrated “personality tests” in its hiring process in order to gauge candidates’ propensity to unionize. Walmart continues personality tests upon hire, and monitors employees’ internet and email use, keystroke logging, and in-depth analysis to construct “heat maps”  of employees and departments apt for unionization. Walmart is just one of the thirty Fortune 100 companies that engages people analytics firm Perceptyx to construct “union vulnerability indexes,” terminate potential agitators before a union election, and avoid claims of unlawful termination under the National Labor Relations Act (NLRA). 

Amazon is another case of egregious union-busting surveillance as it collects data on its employees and alerts management of stores at high risk of unionizing for the proactive prevention of worker organization. Amazon’s subsidiary Whole Foods surveils two dozen metrics among its 95,000 employees at more than 500 stores in order to predict stores’ risk of unionization. These metrics include the store’s employee “loyalty,” a racial “diversity index,” team member sentiment, turnover rate, proximity to a union office, and number of Occupational Safety and Health Administration violations, as well as the unemployment and poverty rate of the area surrounding each store. 

Workers have little recourse for invasive workplace surveillance. Though two bills on workplace surveillance have been introduced in Congress, no federal law yet requires employers to give notice to employees when they begin monitoring.1 Additionally, employees do not have an affirmative right to privacy and can only claim an employer’s violation of their privacy “after-the-fact.” Employees in a non-union workplace are unlikely to make such a claim without a union representative or grievance process to confront their employers. 

Moreover, the National Labor Relations Board (NLRB) held in 2014 that an employer’s monitoring of electronic communications on its email system is lawful as long as the employer does not do anything out of the ordinary to stifle its employees’ collective action by, for example, increasing the degree or scope of its monitoring during a union campaign or by zeroing in on the monitoring of a prominent union agent.12 This decision only encourages employers to institute a broad monitoring policy so that union surveillance is never an outstanding instance. 

Furthermore, the NLRB decided in 2019 that an employer does not violate the National Labor Relations Act by halting employees’ use of its email systems and other technological resources when it observes those resources being used for unionization purposes. 

These two NLRB decisions endorse employers’ monitoring and cessation of employees’ use of technological resources to organize and engage in collective action. Deprived of centralized employer-based forums, employees must resort to private online forums to discuss workplace issues and collective action. 

But employees aiming to unionize are not even guaranteed unfettered privacy on independent online forums. For example, in 2016, Google closed a website that Amazon employees used to discuss workplace issues and only reopened it upon media backlash. If monopolistic tech companies like Google were to bar workers from accessing their products to organize, they would be establishing a feedback loop of employer surveillance diminishing worker power, and diminished worker power leading to workers’ decreased ability to negotiate for less invasive surveillance practices. 

In sum, not only does excessive surveillance neglect the inherent value of privacy to the individual worker, it is particularly problematic when companies monitor employees to subdue union activity. Detailed information on employees’ behaviors collected by a company disarms them of their primary defense in the labor-management relationship, and deprives them of means to combat exploitative employer practices—including workplace surveillance itself. 

Reflections from Charles Joseph

Corporate surveillance is a major problem when it prevents workers from exercising their rights. As Madison Kang argues, surveillance can prevent labor activism. It can also potentially stop employees from working with coworkers to end wage theft or deal with retaliation from an employer. Without strong laws––and strong enforcement––workers will be the ones to pay a price.

Madison Kang is a senior in Cornell University’s School of Industrial and Labor Relations. She has worked as an intern and researcher for the Cornell Law School, the National Center for Law and Economic Justice, and two unions. After graduating, Kang plans to attend law school. 

Charles Joseph has over two decades of experience in employment law. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.