Submitted via regulations.gov
Alan Mislove
Assistant Director for Data and Democracy
Office of Science and Technology Policy
Executive Office of the President
1650 Pennsylvania Ave., NW
Washington, DC 20504
Re: Request for Information: Automated Worker Surveillance and Management
Dear Dr. Mislove,
The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank created in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers, and assesses policies with respect to how well they further those goals. EPI submits these comments in response to the Office of Science and Technology Policy’s Request for Information (RFI) on automated worker surveillance and management.1
The following comments are most relevant to these questions posed by the Office of Science and Technology Policy:
- What data and evidence exist on the impact of automated worker surveillance and management systems on workers, including workers’ pay, benefits, and employment, physical and mental health, and ability to exercise workplace rights? (Question 4b)
- What data and evidence exist on the impact of automated worker surveillance and management systems on labor rights, including workers’ abilities to form and join unions and bargain collectively with their employers? (Question 4c)
- What data or evidence exists on whether automated worker surveillance and management systems are being used for discriminatory purposes or resulting in discrimination? (Question 4e)
- Where might further research, including by the Federal government, be helpful in understanding the prevalence and impact of automated worker surveillance and management systems? (Question 4k)
- Are there policy approaches to regulating automated worker surveillance and management systems from State, Tribal, territorial, or local governments or other countries that Federal agencies could learn from? (Question 5b)
To understand the prevalence of automated worker surveillance and managements systems, one must consider the origins of worker surveillance and the rise of such systems over recent years.
Some of the earliest forms of worker surveillance can be traced back to times of slavery, where slave owners would keep meticulous records of the productivity of slaves and their profits.2 Over the years, the techniques used to track productivity of slaves have been used as the foundation for modern worker surveillance we see today.3 Fundamentally, the use of surveillance in the workplace is for employers to assert additional power over their workers.
Through both academic research and journalistic accounts, we know that automated work surveillance and management systems have been used to determine how workers are hired, what wages workers are paid, and when workers work, among other things. In theory, the use of automated systems has the potential of providing beneficial impacts for workers, such as providing workers with predictable schedules or reducing bias against workers during the hiring process. However, there is evidence that these systems have negatively impacted workers. For example, Amazon workers have cited being fired from their job from data gathered by a tracking system monitoring time workers are not directly working without the intervention of human supervisor.4 The use of automated facial recognition software have impeded workers of color ability to work remotely.5 The introduction of automated systems has shown to exacerbate “just-in-time” or “on-call” scheduling, which is found to cause stress and precarity for workers, especially those in the retail industry.6
Automated systems have also been utilized to control the pace and speed of work or to monitor production quotas, either directly or indirectly. There is some evidence that technological advancements in these systems have also had harmful impacts for basic worker health and safety. A 2021 report from the Strategic Organizing Center examined workplace safety, injury rates, and safety policies at Amazon fulfillment centers, including the use of automated robotic technology to move and stock products throughout the fulfillment center.7 The report found that injury rates at Amazon facilities that used the automatic robots were higher than those without, and that workers faced increased risk of stress or injury due to the pressure of “keeping up” with their robot counterparts. A 2023 report surveying international Amazon workers found over half (51.7%) of surveyed workers agreed that Amazon’s performance monitoring had a negative impact on their physical health, and 57.3% agreed that this technology negatively impacted their mental health.8 Another recent paper from Veena Dubal documents how algorithmic wage-setting is replicating and exacerbating racial and gender wage discrimination amongst workers providing on-demand services through app platforms.
Reports also show that automated worker surveillance and management systems are being used to monitor and ultimately discourage worker organizing efforts.9 For example, it was reported in 2020 that Amazon was investing in technology that would “track and counter the threat of unionization” at the company.10 According to a complaint filed by the National Labor Relations Board (NLRB), Google was accused of unlawfully terminating two employees who were in the process of organizing protests against the company. The NLRB alleged that the company illegally surveilled employees who viewed a union organizing presentation and interrogated others.11 These reports are concerning, because in addition to being a legally protected right, unions are a key tool for workers to rebalance the power they lack under our current economic system. While it is ultimately illegal for employers to surveille workers for supporting a union, research shows that employers are charged with making threats, engaging in surveillance activities, or harassing workers in nearly a third of all union election campaigns.12 Fortunately, the National Labor Relations Board’s General Counsel has urged the Board to protect workers from electronic worker surveillance and automated management systems. In a 2022 memorandum, the NLRB’s General Counsel urged the Board to presume a worker’s Section 7 rights under the National Labor Relations Act are violated if surveillance or automated systems are present in the workplace and if they would interfere with efforts to unionize.13 In cases where the Board does not find the automated systems have violated workers’ rights, the General Counsel urges the Board to require employers to disclose to workers the type of data being collected, the purpose of its collection, and how it will be used.
Even with the NLRB’s recent efforts, there is little known about the type of data the employers are collecting from their workers and how employers are using the data to make decisions that impact their workers. For example, app-based workers routinely do not know how their wage rates are calculated. 14
The use of automated worker surveillance and management systems also has impacts on work privacy. According to a report by Data & Society, Walmart managers have asked workers to download an app on their personal devices to assist with inventory, without mentioning that the app requires access to cameras and location services.15 In 2021, Walmart announced a plan to provide free smartphones to over 740,000 employees with the intention of being used at work. Although a company spokesperson said that the company would not have access to personal data, users signed an agreement which acknowledged that the device is subject to “monitoring, collection, retention, imaging and search as noted below, including any personal content that the user may place on device. Walmart may access the device, including remotely through the security app.”16 Further, employers often use third party vendors to help administer their automated systems with little explanation of what data is being collected and how that data is being used.17 Federal policymakers should further investigate the type of data that is being collected by employers and third-party vendors and for what purpose that data is being used. For example, Senator Bob Casey recently urged the Department of Labor to explore available actions to research and recommend policy solutions to protect workers from exploitation through increased use of surveillance in the workplace. 18We support related efforts, such as this Request for Information from the OSTP, and the recent White House listening session with workers, to collect quantitative and qualitative data alike on how surveillance and automated management technologies are being used and encourage all relevant federal agencies to look for similar opportunities to take action.
Fortunately, some state governments are working to ensure automated worker surveillance and management systems are not negatively impacting workers, and can provide helpful models for similar guardrails at the federal level. In January 2023, California enacted laws that allow workers to know if their employers are surveilling them and why, what data is being collected, and give workers access to see, correct, or even delete such data. Further, California workers can opt-out of allowing their employers selling said data to third parties.19 In New Jersey, legislation has been introduced that would regulate automated hiring systems to minimize the chance of discrimination. The New Jersey bill would also require employers to notify job seekers whether they were using an automated hiring process. 20 States are also working toward addressing the lack of transparency related to automated management systems and wage rates for app-based workers. In Colorado, legislation has been introduced that requires app-based companies to disclose to consumers and workers what portion of payments are going directly to the workers—who are often independent contractors without basic wage and hour protections—versus which portion of the payment is going to the company itself.21 Federal policymakers should enact similar policies to ensure that workers and consumers are not negatively impacted by the use of automated worker surveillance and management systems.
Sincerely,
Margaret Poydock
Policy Analyst and Government Affairs Specialist
Economic Policy Institute
Samantha Sanders
Director of Government Affairs and Advocacy
Economic Policy Institute
Monica Leon
Policy Intern
Economic Policy Institute
Notes
1. Request for Information; Automated Worker Surveillance and Management, 88 Fed. Reg. 27932-27936 (May 3, 2023).
2. Caitlin C. Rosenthal, “How Slavery Inspired Modern Business Management”, Boston Review, August 20, 2018 and Harvard Business School Working Knowledge, “The Messy Link Between Slave Owners And Modern Management,” Forbes, January 16, 2013.
3. Esperanza Fonseca, “Worker Surveillance Is on the Rise, and Has Its Roots in Centuries of Racism,” Truthout, June 8, 2020.
4. Annabelle Williams, “5 Ways Amazon Monitors Its Employees, From AI Cameras To Hiring A Spy Agency,” Business Insider, April 5, 2021.
5. Camille Anidi, a contract lawyer in Long Island told the Washington Post about her experience with a facial recognition software that her employers required her to use when working from home. The system, which has been shown to perform worse for people of color, often failed to recognize her face, and it sometimes mistook the Bantu knots in her hair for recording devices—forcing her to log back in and re-scan her face from three angles in order to accomplish the tasks expected of her. See Drew Harwell, “Contract Lawyers Face A Growing Invasion of Surveillance Programs That Monitor Their Work,” Washington Post, November 11, 2021.
6. Alexandra Mateescu and Aiha Nguyen, Algorithmic Management in the Workplace, Data & Society, February 2019 and Kathryn Zickuhr, Automated and Algorithmic Management Is Already Here, Invisibly Shaping Job Quality For U.S. Workers, Washington Center for Equitable Growth, January 2023.
7. Strategic Organizing Center, Primed For Pain: Amazon’s Epidemic of Workplace Injuries, May 2021.
8. UNI Global Union, Life in the Amazon Panopticon: An International Survey of Amazon Workers, January 2023.
9. Dubal, Veena, On Algorithmic Wage Discrimination (January 19, 2023). UC San Francisco Research Paper No. Forthcoming: http://dx.doi.org/10.2139/ssrn.4331080
10. Jason Del Rey and Shirin Ghaffary, “Leaked: Confidential Amazon Memo Reveals New Software To Track Unions,” Vox, October 26, 2020.
11. Shannon Bond, “Google Illegally Fired And Spied On Workers Who Tried To Organize, Labor Agency Says,” NPR, December 3, 2020.
12. Celine McNicholas, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer, and Lola Loustaunau, Unlawful U.S. Employers Are Charged With Violating Federal Law In 41.5% Of All Union Election Campaigns, Economic Policy Institute, December 2019.
13. National Labor Relations Board (NLRB), “NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices” (press release), October 31, 2022.
14. Alexandra Mateescu and Aiha Nguyen, Algorithmic Management in the Workplace, Data & Society, February 2019
15. Aiha Nguyen, The Constant Boss: Work Under Digital Surveillance, Data & Society, May 2021.
16. Michael Sainato, “Walmart Lied About Their Personal Data Access to the Free Phones Given To Workers,” The Labor Report, July 25, 2021.
17. Kathryn Zickuhr, Workplace Surveillance Is Becoming the New Normal For U.S. Workers, Washington Center for Equitable Growth, August 2021.
18. See Senator Bob Casey letter submitted to the Department of Labor on August 26, 2022. https://www.casey.senate.gov/imo/media/doc/letter_to_the_department_of_labor_re_worker_privacy.pdf
19. Californians for Consumer Privacy, “Annotated Text of the California Privacy Rights Act” (web page), accessed on June 15, 2023.
20. Daniel Munoz, “Could AI Bias Cost You a Job? NJ Lawmaker Wants More Scrutiny of Hiring Software,” NorthJersey.com, February 6, 2023.
21. Sara Wilson, “Colorado Bill Aims to Increase Transparency For Uber, Lyft Driver Pay,” Colorado Newsline, January 31, 2023.
