Author(s)
Ifeoma Ajunwa,
Kate Crawford and Jason Schultz
Source
California Law Review, Vol. 105, No. 3, pp. 735-776, 2017
Summary
Technological changes now enable employers to track the movement of employees inside and outside the workplace. The law has not changed to respond to this new type of surveillance. The loss of workers’ privacy is harmful in itself; worker privacy should be considered a civil right.
Policy Relevance
Worker privacy should be protected by federal law.
Main Points
- Workers have little power to object to constant surveillance.
- Employers log keystrokes to monitor employee’s use of Google and Facebook.
- Employers claim that monitoring is needed to promote efficiency and innovation.
- Constant monitoring causes stress, and employees may take risks to beat the system.
- Because a government employer’s action is “state action” under the United States Constitution, public employees have more privacy protection than employees of private firms.
- Some state laws protect employees from some types of monitoring.
- The most protective allows video surveillance but not audio surveillance.
- Some laws protect only intimate worker spaces such as restrooms.
- Some states only require that employers notify employees of monitoring.
- A few states, like Maryland, restrict employer access to employee social media accounts, or limit location tracking of workers.
- In the least protective states, like Massachusetts, the employer’s legitimate business interest in tracking often prevails over the worker’s right to privacy.
- New privacy issues will arise due to employers’ increasing interest in encouraging employee participation in wellness programs; collection of wellness data could be a back door to discrimination against obese employees or those who smoke.
- The use of productivity apps and big data to promote efficiency in the work place discounts worker’s privacy interests.
- The best way to protect workers’ privacy would be to pass a federal law specifically addressing employer surveillance of employees; the law should prohibit surveillance that extends to activities other than work tasks.