The transition to electric vehicles is a critical part of the global fight against climate change. But while national sales have surged in the last several years, limited charging infrastructure remains a massive barrier to the transition to electric vehicles. The nation’s foremost air pollution statute offers a potential solution.
Companies across the economy are increasingly using electronic surveillance to track and monitor their workforce – with serious impacts on worker power and health.
The Center for Democracy & Technology (CDT) and Governing for Impact (GFI) have joined a coalition of 14 organizations to submit detailed comments to the White House Office of Science and Technology Policy (OSTP) in response to its Request for Information (RFI) on the important issue of electronic surveillance and automated management in the workplace.
The comments present a comprehensive analysis of the risks associated with workplace surveillance and automated management tools and emphasize the need for responsible and transparent policies to protect workers’ health, safety, privacy, and dignity.
“As electronic surveillance systems continue to increase in both sophistication and prevalence, it is critical that policymakers take steps to ensure that their use in the workplace does not harm workers,” said CDT President & CEO Alexandra Givens. “CDT is grateful for the Biden Administration’s focus on this issue, which will only rise in importance in the coming years. These comments lay out the risks that surveillance and automated management systems can present to workers and share concrete steps that the Administration can take to protect workers’ safety and workers’ rights.”
Rachael Klarman, Executive Director of Governing for Impact, said, “Workplace surveillance can threaten workers’ rights.”
“The Biden administration has the authority to better regulate this technology, and we hope our comment helps spur immediate action to protect American workers,” she said.
The comments are organized around the different types of threats that surveillance and automated management systems can pose to workers, specifically: how these tools threaten the health and safety of workers; how these tools are used in ways that discriminate against vulnerable workers and exacerbate structural inequalities in the workplace and labor market; how these tools can chill and infringe on workers’ rights to organize and engage in protected labor activities; and how companies use these tools to deprive workers of earned compensation.
The comments include specific recommendations for how federal agencies–including the Department of Labor, Equal Employment Opportunity Commission (EEOC), Federal Trade Commission (FTC), National Institute for Occupational Safety and Health (NIOSH), and Occupational Safety and Health Administration (OSHA)–can use regulation and public education to prevent and mitigate these risks. The signing organizations hope the OSTP’s request for information is the first step toward concerted interagency action to confront this rising threat to US workers. Some of these recommendations draw from memoranda that CDT, GFI, and many of the other signatories to these comments sent to OSHA and NIOSH earlier this year.
The following organizations have endorsed the comments:
Center for Democracy & Technology
Governing for Impact
Accountable Tech
American Civil Liberties Union
Communication Workers of America
Jobs With Justice
The Leadership Conference on Civil and Human Rights
National Employment Law Project
National Women’s Law Center
Open MIC
Service Employees International Union
TechEquity Collaborative
United Auto Workers
Upturn
The Teamsters union made big news with their announcement last month that a group of Amazon delivery drivers (working for a third party delivery contractor named Battle Tested Strategies or “BTS”) had – for the first time – unionized and negotiated a contract. The messy aftermath underscores how crucial it is that the National Labor Relations Board’s (“NLRB”) forthcoming final rule on joint employment includes worker surveillance as a factor in its finding of control.
Mental health is poised to be the next litigation frontier for workplace safety and health as supporters push OSHA to use its enforcement powers to protect workers from stress on the job.
More than a dozen advocacy groups—including Governing for Impact and the Center for Democracy & Technology—are calling on OSHA to address with rulemaking the use of electronic surveillance and algorithmic management in the workplace.
As companies use tech to push workers and limit organizing power, groups outline executive actions Biden can take in emerging frontier for labor rights
WASHINGTON, DC — Today, Governing for Impact (GFI), the Center for Democracy & Technology (CDT), and 19 organizations urged the Biden administration to take action on an emerging front in the labor movement: electronic workplace surveillance. Employers across the American economy are increasingly using electronic surveillance and algorithmic management to track and monitor their employees – with serious impacts on worker safety and health. Workforce surveillance has been shown to harm workers’ mental and physical wellbeing, hinder their ability to organize, and limit their access to rights of employment.
“As President Biden’s new labor secretary nominee has herself noted, technology can seriously impact worker safety and power,” said Rachael Klarman, Executive Director at GFI. “The Biden administration must use its existing authority to better regulate surveillance tech and protect American workers.”
”Employers using new surveillance and automated management techniques present a clear and present danger to the health and safety of workers across the country,” said Matt Scherer, Senior Policy Counsel for Workers’ Rights and Technology at CDT. “These memoranda lay out why the key federal agencies charged with ensuring occupational safety and health can and should take concrete steps to address the threats that ESAM poses to workers.”
“Can you imagine being afraid to go to the bathroom because you are afraid of being spied on and punished for being 20 seconds over your break time? That is the impact of Amazon’s surveillance on workers,” said Khali Jama, an Amazon warehouse worker in Minnesota supported by the Awood Center (an Athena Coalition member organization). “It is designed to make us stressed and afraid, preventing us from making sure our basic needs on the job are met. My colleagues and I have been organizing for years for more dignity and safety on the job, and we call on OSHA to fulfill its mandate to help us do that.”
The emerging threat of workplace surveillance technologies is already being felt by workers across the country. Amazon workers suffer serious injuries at twice the rate of other warehouse workers, and Washington’s occupational safety and health agency issued a citation stating that there was “a direct connection between Amazon’s employee monitoring and discipline systems and workplace musculoskeletal disorders (MSDs).” Tesla is using these technologies to surveil employees and quash worker organizing efforts – a potential violation of federal labor law. And McDonald’s is using technology to control its franchisees’ cashier employees while claiming it is not liable to those workers under employment or labor law.
In a series of memos directed to the U.S. Department of Labor, the U.S. Department of Health and Human Services, and the White House Domestic Policy Council, GFI, CDT, and 19 organizations detailed a slate of executive actions federal agencies can take to protect workers from the health and safety harms of surveillance tech. Specifically, the groups are calling for:
The Occupational Safety and Health Administration (OSHA) to develop a workplace standard to regulate workplace surveillance technologies based on its existing statutory authority to regulate hazards to workers’ physical safety and mental health;
OSHA to incorporate workplace monitoring in certain existing guidance on workplace injury prevention and issue new guidance that comprehensively identifies workplace injury risks and solutions in warehousing; and
The National Institute for Occupational Safety and Health (NIOSH) to fund new research into the effects of workplace surveillance technologies on workers’ physical and mental health, including its impact on job strain, industrial accidents, and workplace injuries.
To read the groups’ letter to federal agencies, please see here.
About Governing for Impact
GFI is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/.
About Center for Democracy & Technology
CDT is a 28-year-old 501(c)3 nonpartisan nonprofit organization that fights to put democracy and human rights at the center of the digital revolution. It works to promote democratic values by shaping technology policy and architecture, with a focus on equity and justice.
Electronic surveillance and automated management should not be understood as merely imposing some new, discrete set of harms on workers. Rather, pervasive employee monitoring should be seen as fundamentally altering the employment context in a way that threatens a wide range of employment and labor law protections. From worker safety, compensation, and classification to workplace discrimination and disability policy, policymakers and regulators must ensure that longstanding protections remain effective in the face of new technology.
Recent industrial policy has the potential to accelerate decarbonization and increase America’s productive capacities. However, unless we build limits on corporate value extraction into the regulations and agency practices that will guide the contracts made between the government and private sector in the coming years, we risk the diversion of public investment to private coffers.
Earlier this week, the Center for Law and Social Policy and Governing for Impact submitted a comment to the U.S. Department of Labor (DOL) explaining our support for its proposed rule on the independent contractor versus employee classification. Our comment is supportive of the DOL’s proposal. Specifically, it applauds the Department’s decision to affirm its long-standing use of the multi-factor “economic realities” test and to explicitly discuss the impact of worker surveillance technology on a determination of employer “control.”
The proliferation of independent contracting, gig work, and worker misclassification has imposed significant harm on workers in low-wage industries and has undermined federal and state labor protections. The 2017 Bureau of Labor Statistics (BLS) Contingent Worker Supplement to the Current Population Survey, which measures workers in alternative work arrangements, estimated that 14 percent of gig workers earned less than the federal minimum wage and 29 percent earned less than the applicable state minimum wage. Gig workers face economic insecurity and rely heavily on public benefits. According to the BLS, 30 percent of gig workers used the Supplemental Nutrition Assistance Program (SNAP) within a month of the survey, which is twice the rate of employee-designated service sector workers. Accordingly, 1 in 5 gig workers could not afford enough to eat, and 31 percent of gig workers could not afford to pay the full amount of their utility bills in the month prior to the survey.
It is crucial that DOL’s Wage and Hour Division enforces the Fair Labor Standards Act (FLSA) evenly and fairly—and that the “economic realities” of the working arrangement determine independent contractor versus employee status. One of the six factors that contribute to this analysis is a consideration of the level and nature of control the employer has over the worker. Companies classify workers as independent contractors, in part, to avoid the costs and liabilities associated with having employees (e.g., paying a minimum wage and compensating them for overtime, as required by the FLSA). Simultaneously, some of these companies implement worker surveillance technologies that provide them the authority to exert control over their supposed independent contractors. If companies benefit from workers’ labor and integrate it into the company’s overall enterprise through control and supervision, that should weigh in favor of a finding of employee status.
Moreover, and as the proposal notes, the rule should weigh in favor of employee status regardless of whether the supervision is technological or in-person. While the “economic realities” test does not require direct supervision to find employee status, when it is present, that supervision is often key to courts making such a finding. Worker surveillance technology makes this type of supervision possible even without a supervisor physically present. Previous FLSA litigation helpfully illustrates why.
For example, a 2017 FLSA case that framing and drywall installers brought against their employer resulted in the Fourth Circuit highlighting the daily, on-site supervision of the workers as key evidence to find that they were employees. The supervision went well beyond the “oversight necessary to ensure that a contractor’s services meet contractual standards of quality and timeliness.” Instead, the supervisors provided frequent feedback and instruction about the pace and quality of their work. The supervisors repeatedly held meetings to direct the workers on which projects they needed to complete and the methods by which they should do so. Imagine if the employer had used worker surveillance technologies to accomplish these same objectives. Rather than requiring an in-person supervisor to provide frequent feedback about the pace and quality of work the employer could have implemented which would direct the workers to their next projects, optimize their route, and alert management to deviations.
As this example illustrates, worker surveillance technology replicates the same types of control that in-person supervision does. The presence of such surveillance should weigh in favor of employee status in the same way that in-person surveillance would.
Misclassification of workers as independent contractors is costly to workers, the government, and responsible employers who correctly classify their workforce. As our comment explains, the DOL’s proposed rule reaffirms the centrality of economic dependence based on multiple factors to determine employment status in a manner the DOL, Wage and Hour Division, and courts have used for decades. This would reduce the confusion for workers and employers arising from the anomalous rule proposed by the previous administration and benefit the public as a result.
Emily Andrews is the director of education, labor & worker justice at CLASP.
Lorena Roque is a senior policy analyst at CLASP.
Reed Shaw is a policy counsel at Governing for Impact.