Category Archives: Privacy

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.

The Wired Guide to Your Personal Data (and Who Is Using It)

Source: Louise Matsakis, Wired, February 15, 2019

On the internet, the personal data users give away for free is transformed into a precious commodity. The puppy photos people upload train machines to be smarter. The questions they ask Google uncover humanity’s deepest prejudices. And their location histories tell investors which stores attract the most shoppers. Even seemingly benign activities, like staying in and watching a movie, generate mountains of information, treasure to be scooped up later by businesses of all kinds.

Personal data is often compared to oil—it powers today’s most profitable corporations, just like fossil fuels energized those of the past. But the consumers it’s extracted from often know little about how much of their information is collected, who gets to look at it, and what it’s worth. Every day, hundreds of companies you may not even know exist gather facts about you, some more intimate than others. That information may then flow to academic researchers, hackers, law enforcement, and foreign nations—as well as plenty of companies trying to sell you stuff…..

….The trade-off between the data you give and the services you get may or may not be worth it, but another breed of business amasses, analyzes, and sells your information without giving you anything at all: data brokers. These firms compile info from publicly available sources like property records, marriage licenses, and court cases. They may also gather your medical records, browsing history, social media connections, and online purchases. Depending on where you live, data brokers might even purchase your information from the Department of Motor Vehicles. Don’t have a driver’s license? Retail stores sell info to data brokers, too…..

Prisons Across The U.S. Are Quietly Building Databases Of Incarcerated People’s Voice Prints

Source: George Joseph, Debbie Nathan, The Intercept, January 30, 2019

….Dukes, who was released in October, says he was never told about what that procedure was meant to do. But contracting documents for New York’s new prison phone system, obtained by The Appeal in partnership with The Intercept, and follow-up interviews with prison authorities, indicate that Dukes was right to be suspicious: His audio sample was being “enrolled” into a new voice surveillance system.

In New York and other states across the country, authorities are acquiring technology to extract and digitize the voices of incarcerated people into unique biometric signatures, known as voice prints. Prison authorities have quietly enrolled hundreds of thousands of incarcerated people’s voice prints into large-scale biometric databases. Computer algorithms then draw on these databases to identify the voices taking part in a call and to search for other calls in which the voices of interest are detected. Some programs, like New York’s, even analyze the voices of call recipients outside prisons to track which outsiders speak to multiple prisoners regularly.

Corrections officials representing the states of Texas, Florida, and Arkansas, along with Arizona’s Yavapai and Pinal counties; Alachua County, Florida; and Travis County, Texas, also confirmed that they are actively using voice recognition technology today. And a review of contracting documents identified other jurisdictions that have acquired similar voice-print capture capabilities: Connecticut and Georgia state corrections officials have signed contracts for the technology (Connecticut did not respond to repeated interview requests; Georgia declined to answer questions on the matter)…..

GINA, Big Data, and the Future of Employee Privacy

Source: Bradley A. Areheart & Jessica L. Roberts, Yale Law Journal, Vol. 128 no. 3, January 2019

Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA could represent the future of employment law.

The Datafication of Employment: How Surveillance and Capitalism Are Shaping Workers’ Futures without Their Knowledge

Source: Sam Adler-Bell and Michelle Miller, The Century Foundation, December 19, 2018

We live in a surveillance society. Our every preference, inquiry, whim, desire, relationship, and fear can be seen, recorded, and monetized by thousands of prying corporate eyes. Researchers and policymakers are only just beginning to map the contours of this new economy—and reckon with its implications for equity, democracy, freedom, power, and autonomy.

For consumers, the digital age presents a devil’s bargain: in exchange for basically unfettered access to our personal data, massive corporations like Amazon, Google, and Facebook give us unprecedented connectivity, convenience, personalization, and innovation. Scholars have exposed the dangers and illusions of this bargain: the corrosion of personal liberty, the accumulation of monopoly power, the threat of digital redlining, predatory ad-targeting, and the reification of class and racial stratification.3 But less well understood is the way data—its collection, aggregation, and use—is changing the balance of power in the workplace.

This report offers some preliminary research and observations on what we call the “datafication of employment.” Our thesis is that data-mining techniques innovated in the consumer realm have moved into the workplace. Firms who’ve made a fortune selling and speculating on data acquired from consumers in the digital economy are now increasingly doing the same with data generated by workers. Not only does this corporate surveillance enable a pernicious form of rent-seeking—in which companies generate huge profits by packaging and selling worker data in marketplace hidden from workers’ eyes—but also, it opens the door to an extreme informational asymmetry in the workplace that threatens to give employers nearly total control over every aspect of employment.

The report begins with an explanation of how a regime of ubiquitous consumer surveillance came about, and how it morphed into worker surveillance and the datafication of employment. The report then offers principles for action for policymakers and advocates seeking to respond to the harmful effects of this new surveillance economy. The final sections concludes with a look forward at where the surveillance economy is going, and how researchers, labor organizers, and privacy advocates should prepare for this changing landscape ….