Employers are gathering data on your work habits. US labour advocates want to change this


Remote work and other monumental shifts wrought by the pandemic have increased the adoption of tracking and monitoring software and hardware. — Business vector created by jcomp - www.freepik.com

Most people are used to whipping out their smartphones to track their latest online orders with airstrike-like accuracy. But the technology on some delivery vehicles also closely monitors the drivers, tracking everything from whether they are wearing seatbelts, to engine idle time and even whether they are taking too many time-consuming left turns.

That data can be fed into algorithms to determine the safest, most fuel-efficient routes and speediest delivery times. It can also be used to track a particular driver's behaviour and inform performance warnings, said Doug Bloch, the political director of Teamsters Joint Council 7, which represents many UPS drivers with those kinds of onboard systems in California. (A UPS Spokesperson said the company uses technology to track packages and driver behaviour for safety, but not for disciplinary purposes.)

That is because despite the passage of the California Consumer Privacy Act that took effect last year, how data is collected and used about people in workplace settings and most industries is still largely unregulated — even when it comes to remote workers logging in from home.

Workers currently have very little knowledge or say about any of these technologies, or how they are used, said Annette Bernhardt, the director of the Technology and Work program at the UC Berkeley Labour Centre, in an email. "They don't know what data is being collected on them or when they are being monitored."

Bernhardt, along with Lisa Kresge and Reem Suleiman of the labour centre, released a report on Wednesday outlining how employees in a variety of industries are tracked and surveilled in the course of doing their jobs, and what rights workers should have over how information about them is collected, stored and used.

Titled Data and Algorithms at Work, the Case for Worker Technology Rights the report looks at how productivity tracking and data collection has not only become commonplace for delivery drivers and warehouse workers, but extends to almost every industry, from grocery store clerks to home-care workers and many people who traded their offices for working from home.

The report argues workers in all industries should be told what data-driven technologies are being used in their workplace, along with their being notified when electronic monitoring or algorithms are used that affect their job or working conditions.

"In the last century we decided that workers should have the right to safe workplaces and a minimum wage and the freedom to organise," Bernhardt said in an email. "We think of technology rights in the same way — they're the new labour standards that need to be added for the 21st century workplace."

The report also looks at other uses of technology at work and how it could be regulated. For example, how using algorithms to sift through job candidates, do background checks or monitor social media accounts can discriminate on the basis of race and gender.

Workers have no way of understanding, let alone challenging, how those kinds of automated decisions are made, Bernhardt wrote.

The report brings up a timely issue that could see wrangling during the state legislative session next year.

While California's landmark consumer data privacy law was hailed by many privacy advocates, legislators also mostly exempted employees and contractors from the law when it came to their data privacy rights at work.

Because those employee exemptions end on Jan 1, 2023, "You can expect to see this issue raised in 2022," during the next legislative session, said Emory Roane, policy counsel at the nonprofit Privacy Rights Clearinghouse.

"This is a critically important issue," Said Assemblyman Jesse Gabriel, D-Woodland Hills, who chairs the Assembly Committee on Privacy and Consumer Protection. "I expect to see movement on it in the next legislative session."

Remote work and other monumental shifts wrought by the pandemic have also increased the adoption of tracking and monitoring software and hardware, said Ken Wang, policy associate for the California Employment Lawyers Association.

Bernhardt's report points to keystroke logging technology and webcams that can tell when a person goes off task as examples of tech that can keep track of people even when working from home.

While there are some rules around where security cameras can be installed and California requires both parties to consent to audio recordings, Wang said for the most part "Companies just get to deploy whatever they want," in terms of tracking software.

The issue of productivity tracking came up during the 2021 legislative sessions with the recently signed AB 701. The state law limits warehouse speed quotas so that they don't jeopardise safety, with a particular eye to Amazon fulfilment centres. The law did not delve into workers' rights around how any technology is used to set quotas.

Business groups are already gearing up for a legislative battle. California Chamber of Commerce Policy Advocate Shoeb Mohammed said in an email that "What are often referred to as 'employee surveillance' technologies are in-fact commonplace workplace productivity tools, which provide accountability to and for employees, customers and businesses by providing transparent and unbiased access to workplace information."

Mimicking the protections of the consumer privacy law could create problems in the workplace setting, he said. "For example, if an employee uses their work email to engage in harassment or illegal conduct, granting that employee an absolute right to delete would impact the ability for a victim of such conduct to bring a claim later in time," Mohammed said.

In the meantime unions and collective bargaining agreements are the main way for workers to have a say in what technology is used on them at work. But "Their efforts need to be complemented by robust regulation for those workers who are not in unions," said Bernhardt, the author of the UC Berkeley report, in an email.

As the deputy policy director for SEIU Local 2015 Amanda Steele has seen the issue come up first hand. The chapter represents nursing home workers across the state as well as thousands of In-Home Supportive Services workers, a program funded with federal Medicaid dollars.

In 2016 when the federal government wanted to closely track workers movements with GPS and other technology to verify tasks and care visits with an eye to fighting supposed fraud, Steele's union pushed back. Steele's members in California made some changes to how they log time, but their locations aren't monitored, she said.

"That's invasion of privacy," said Rachell Lewis, an in-home care worker and SEIU member, of the idea of tracking her location at work. She said it would have been a distraction that interferes with her caregiving, adding: "Thank god we have a union." — San Francisco Chronicle/Tribune News Service

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