Category Archives: Privacy

The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace

Source: Richard A. Bales, Katherine V.W. Stone, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
(subscription required)

From the abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. With these tools, employers can record their workers ’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (AI) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by AI will accompany workers from job to job as they move around the boundaryless workplace. Thus AI and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways AI is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on five areas of law in which AI threatens to undermine worker protections: antidiscrimination law, privacy law, antitrust law, labor law, and employee representation. Finally, this article maps out an agenda for future law reform and research.

Restricting Employee Travel During COVID-19: Yea or Nay?

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 17, August 18, 2020
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From the abstract:
An employee submits a time off request for a week in late September. In a conversation with a co-worker, the employee says she is going to a wedding in a state known to be a coronavirus hotspot. The co-worker contacts HR and asks if your company will require the employee to self-quarantine for 14 days upon her return. If not, the co-worker says he wants permission to work from home for those two weeks himself because he is concerned about COVID-19 transmission from his colleague.

As COVID-19 shows little sign of disappearing this fall, employers who are bringing employees back to onsite work will need to consider their stance on personal travel by employees. Should they attempt to restrict personal travel? Require employees to report personal travel? Impose requirements for self-quarantine?

These are questions employers across the country are wrestling with as they establish policies and procedures to keep employees and customers healthy and safe. “As employees report to work, both employees and employers are concerned that employees who engage in personal travel to areas affected by COVID-19 may jeopardize the safety of the workplace,” Joseph McNelis III and Samuel Haaz, attorneys with Fox Rothschild, say in a client alert.

Employees’ Refusals to Participate in an Employer-Sponsored Wellness Program: Barriers and Benefits to Engagement

Source: Evan K. Perrault, Grace M. Hildenbrand, Rachel HeeJoon Rnoh, OnlineFirst Published January 7, 2020
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From the abstract:
While worksite wellness programs are generally designed to help employees realize better overall health, some employees may not see them in that light. The current study sought to better understand why employees refuse to participate in a new employer-sponsored wellness program. This study also investigated how participation in the program is related to employees’ self-perceived health, efficacy to be healthier and their perceptions toward their organization providing useful resources to engage in a healthy lifestyle. A survey of more than 1,500 employees at a large Midwest organization was conducted after their annual open-enrollment period. Open-ended responses from participants refusing to participate in the wellness program (n = 297) indicated privacy considerations as their primary concern. They also thought participation would take too much time, conceptually thought the program was unfair or not useful and felt they were already healthy and not in need of the program. Both participants and nonparticipants had no differences in self-perceived overall health. However, participants had greater self-efficacy, and perceptions that their employer offered useful resources to engage in a healthy lifestyle, than nonparticipants. Recommendations for communicating new wellness programs to employees are discussed.

L&E Evolution Part III: Managing Employees in a Digital Age

Source: Lorene D. Park, Labor Law Journal, Vol. 70 no. 2, Summer 2019
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The expectation that business will be done electronically, the trend toward paperless records, and ongoing advances in technology have birthed so many legal issues that, for employers, compliance may seem impossible.

For example, much was made of the promise of using artificial intelligence to screen job applicants, but it emerged that AI can both learn and perpetuate human biases that may violate Title VII. And using online employment agreements also may result in litigation over whether an employee “clicked” on a screen to agree.

What follows is an overview of key issues that have emerged for employers, organized around the lifespan of an employment relationship. We’ll start with the hiring process, covering accessibility, screening methods, electronic agreements, and more. Then we’ll cover computer use policies, trade secrets, wiretapping and electronic privacy statutes, data breach notification, social media, NLRA protections, and other issues that arise during the employment relationship. We’ll wrap with a discussion on privacy, including surveillance of employees, as well as issues surrounding termination of employment.

On the Grid 24/7/365 and the Right to Disconnect

Source: C. W. Von Bergen, Martin S. Bressler, and Trevor L. Proctor, Employee Relations Law Journal, Vol. 45, No. 2, Autumn 2019
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From the abstract:
Technological developments over the past few decades in laptop computers, smartphones, wifi connectivity, and other digital communication approaches have made it easier for people to work remotely. While many appreciate the flexibility and increased productivity these technological advancements provide, some lament that the ability to work anywhere, anytime has transformed into the expectation to work everywhere, all the time. The authors of this article discuss the issue and examine domestic and international right to disconnect practices.

A Seat at the Table: Negotiating Data Processing in the Workplace. A National Case Study and Comparative Insights

Source: Emanuele Dagnino, Ilaria Armaroli, A Special Issue of the Comparative Labor Law & Policy Journal on “Automation, Artificial Intelligence, and Labour Protection” guest-edited by Valerio De Stefano, Forthcoming, Date Written: June 13, 2019

From the abstract:
It is already a common understanding that datafication is one of the most important trends in our society and, as a consequence, in the economic environment. Datafication and big data are not only the core of the two most debated new business and technological models – platform economy and Industry 4.0 (or smart manufacturing) – but have also permeated more traditional organizations, entering all their departments (marketing, production, sales, finance). In the latest years, datafication is becoming ever more a reality in work organization and human resource management, considerably impacting on the way work is organized, managed and performed. Stemming from this background, this paper wants to analyze the topic of data processing in the employment context focusing on the specific role that collective representation can play. Although there are some interesting antecedents in research regarding the role of workers’ representatives in this context, the topic has received very limited attention as far as the new wave of digitalization is concerned, and almost no interest in its double — individual and collective — dimension. By contrast, we believe that ongoing technological and organizational changes raise new challenges and open a new room for intervention for workers’ representatives. In this sense, they are expected not only to limit the quantity and fix the typologies of data collected and processed, against the risk of workers’ surveillance, but also to co-decide over purposes and procedures of data processing, for the self-determination and concrete participation of workers. Negotiating the algorithm, in our opinion, starts here. In order to achieve the above-mentioned purposes, a case study analysis is developed and focused on the Italian context. Firstly, we focus on the legal framework to shed light on the prerogatives and powers formally attributed to workers’ representatives in the field of data protection and workplace monitoring. Emphasis will be placed on the changes made by the so-called Jobs Act reform from September 2015. Secondly, we examine a set of 1,161 company-level collective agreements concluded in Italy between late September 2015 and 2018 to investigate the actual role played by labor representation in this field. Moreover, we provide some insights into other national contexts, with a view to comparing the results of our analysis with the negotiated outcomes achieved in other countries, in an attempt to better understand the institutional determinants of varieties of actors’ orientations and collective solutions.

Related:
Introduction: Automation, Artificial Intelligence, and Labour Protection
Source: Valerio De Stefano, Comparative Labor Law & Policy Journal, Vol. 41, No. 1, 2019

From the abstract:
The Comparative Labor Law and Policy Journal is publishing a collection of articles on “Automation, Artificial Intelligence, and Labour Protection” edited by Valerio De Stefano (KU Leuven). This collection gathers contributions from several labour lawyers and social scientists to provide an interdisciplinary overview of how new technologies, including smart robots, artificial intelligence and machine learning, and business practices such as People Analytics, management-by-algorithm, and the use of big data in workplaces, far from merely displacing jobs, profoundly affect the quality of work. The authors argue that these issues depend, and can be affected by, policy choices – since they are not just the “natural” result of technological innovations – and call for adequate regulation of these phenomena. Contributing authors are Antonio Aloisi, Ilaria Armaroli, Fernanda Bárcia de Mattos, Janine Berg, Miriam Cherry, Emanuele Dagnino, Valerio De Stefano, Elena Gramano, Matt Finkin, Marianne Furrer, Frank Hendrickx, Parminder Jeet Singh, David Kucera, Phoebe Moore, Jeremias Prassl, and Uma Rani. This article introduces this collection and gives an overview of the issues discussed by the authors.

Aggression Detectors: The Unproven, Invasive Surveillance Technology Schools Are Using to Monitor Students

Source: Jack Gillum and Jeff Kao, ProPublica and Wired June 25, 2019

…. The students were helping ProPublica test an aggression detector that’s used in hundreds of schools, health care facilities, banks, stores and prisons worldwide, including more than 100 in the U.S. Sound Intelligence, the Dutch company that makes the software for the device, plans to open an office this year in Chicago, where its chief executive will be based.

California-based Louroe Electronics, which has loaded the software on its microphones since 2015, advertises the devices in school safety magazines and at law enforcement conventions, and it said it has between 100 and 1,000 customers for them. Louroe’s marketing materials say the detection software enables security officers to “engage antagonistic individuals immediately, resolving the conflict before it turns into physical violence.” ….

Future Work

Source: Jeffrey M. Hirsch – University of North Carolina School of Law, February 14, 2019

From the abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.