Surveillance, Information Gathering, and Workers’ Rights

By Thalia Erazo

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

Technology has advanced rapidly in a relatively short amount of time, and this is a phenomenon that most have met with quick adaptation at the convenience and pleasure it brings to daily life. However, these advancements will not be solely beneficial. 

One of the biggest challenges facing workers’ rights in the future is the potential threat technology creates. Specifically, the way technologies can be weaponized against workers through surveillance and information gathering. As technology becomes more embedded into the world, these potential issues will prove to be impossible to avoid. 

One way in which technology poses a challenge to workers’ rights is through surveillance. Surveillance can be a threat to worker’s rights by acting as an invasion of privacy for employees. This invasion of privacy can be present in tracking and interfere with basic human needs. Breaks, eating, restroom visits, necessary personal communications will all be subject to the increased surveillance technology can provide to employers. Perhaps this would be done with the intention of increasing productivity or to combat the idea of time theft, regardless of the given justification, it would be an invasion of privacy and detrimental to workers. 

This issue could be compounded if this surveillance is managed by a program rather than by a person. Lacking the human touch can lead to an environment of no allowances or compromise. A human may be aware of special circumstances that a program is not privy to, as technology is often subject to the limitations of its human creators. 

The creators of such programs could have neglected to account for nonstandard human needs. An employee may have a medical condition that may require that they be granted time to eat, time to take necessary medications, or other special physical needs that reasonable accommodations are made for. All of this could be interpreted as ‘stolen time’ by a program that someone neglected to design with some degree of flexibility. 

Beyond the human error in design, programs can also be subject to glitches or errors that could lead to incorrect records and to wrongful termination of employment. 

Information gathering is another way technology can be used to interfere with worker’s rights. Rather than just monitoring workplace activity, information could be collected by employers even when employees are not on work premises and going about their daily lives. Programs or service providers could monitor social media for worker communications, being watchful of when casual conversation inches to complaint and discussion of matters that could be damaging to employers financially or by reputation. 

Information gathering could be used to identify individuals that they may decide are instigators and target such persons. Based on this collected information and in an attempt to neutralize potential issues, unrelated discipline or actual termination could be actions taken by employers. Gathered information could be used to create a back pocket excuse to dismiss an employee in the event that they raise a concern. While many of these issues are old and well-established threats and infringements to workers’ rights, technology provides the opportunity for new and more effective methods of doing so. 

Although some may suggest that this gathering of information could also be of aid to workers, this is unlikely to be the case. Information about a safety issue or workplace complaints related to improper behavior of other employees would likely be closely guarded. As any workplace’s priority is to protect itself first and foremost, information that would support such claims would likely be withheld if it would be in an employee’s favor. 

This gathering of information would not be beneficial to all but would very much be a one-way street. In addition to this, since it is the employers who maintain the information, they gather they could very well dispose of information that could be detrimental to them. 

Although advancements in technology can create a great many benefits to humanity, they can likewise create a new host of challenges. The excitement of these advancements and the unprecedented nature of their potential influence leads us to be unprepared for the fallout. No secret that the law is often three steps behind technological developments, lawmakers are often not especially well informed of the role technology now has in the world. As such, new protections could take a great deal of time to be created if at all. 

Without protections, technology can be used to threaten workers’ rights through the means of surveillance and information gathering. This is something we can see occurring now and is likely to become a more pressing issue as the world progresses into one more reliant on technology.

Reflections from Charles Joseph

Worker productivity has shot up enormously since 1980––but for every 70% increase in productivity, wages have only increased 12%. Technology could be part of the issue. As employers develop greater tools to track workers and monitor efficiency, they optimize for productivity. And yet wages lag behind. 

On top of that, Erazo identifies significant problems for workers’ rights and privacy thanks to technology. Gathering data on workers could amount to workplace discrimination or translate into wage theft. For instance, in New York employers cannot withhold pay for work done during an “unpaid” lunch break. As Erazo notes, these violations could easily result in wrongful termination. Without stronger workplace protections, workers will continue to suffer.

Thalia Erazo holds a bachelor’s degree in English from the University of South Florida. In the fall, Erazo will join the University of Georgia School of Law as part of the class of 2024. 

Charles Joseph has over two decades of experience as an NYC employment lawyer. 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.