In December 2020, the United States National Labor Relations Board (hereafter: NLRB) filed a lawsuit against Google, alleging: illegal surveillance of employees, leading to terminations for attempting to organize a labor union. The lawsuit details the company’s preventive, and at the same time illegal, measures like limiting undisturbed usage of digital tools (such as the online calendar, e-mail, etc.).
While the story will likely get an epilogue this coming April, activities of tech workers pointing to new areas of struggle for labor rights – opposing employer surveillance and control.
Surveillance of workers is not a new phenomenon – it first appeared during the interwar period in close relation to scientific management, i.e. Taylorism.
With the increasing numbers of people working from home during the pandemic, employers sought ways to ensure tasks are being accomplished. Innovations in surveillance today are driven by digitalization and access to data; this includes dedicated software packages meant for efficient processing and presentation of obtained information.
The legal sale of surveillance software (spyware) – like Hubstaff – tripled in the first three months of the pandemic outbreak, as the practice of working from home became widespread. These programs function by taking periodic snapshots in an attempt to document which files were utilized, websites viewed, as well as, posses the capability to track employees movements during their workday. Based on the time workers spent writing or moving the mouse, surveillance software compiles and calculates their levels of productivity.
However, a few questions remain unanswered: Are there any mechanisms against the spyware usage? Is it possible for data not to be exclusively used as “companies oxygen”? What are the legal frameworks and software solutions that can help workers with organizing and formulating their demands?
GDPR – workers’ unexpected legal ally?
The European General Data Protection Regulation (further referred to as GDPR or the Regulation), following the initial debate on its effects on companies, today is more and more mentioned in relation to work.
The beginnings of such deliberations referred mostly to platform/digital work. Platforms process workers data for different purposes (including performance evaluation, rating and reputation systems, as well as, workers’ profiling). According to GDPR provisions, employers (in this case the digital platforms) are required to notify their workers (data subjects) that their data is being collected and about the ways in which its being processed. The statute further guarantees the rights to accurate, up-to-date and transparent processing of data.
Workers have the right to obtain access to the collected data, and to request human reevaluation when automated decision making is applied. For digital workers such laws are important because of the legal protections in case of (temporary or permanent) suspension based on automated processes, or when profiling influences their ratings and access to jobs.
Last but not least, GDPR stipulates the period in which employers have to respond free-of-charge to worker’s requests. In case such requests are not fulfilled within the prescribed timeline, it allows workers to contact the supervisory authority or to use judicial remedy.
Furthermore, GDPR outlines the protections and practices in relation to workers’ surveillance – in particular when working from home. The number of mouse clicks/keyboard hits and files viewed, are data the Regulation defines as personal. To enable performance evaluations and productivity calculations, the software processes personal information, which leads to profiling. GDPR recognizes that precisely this treatment of data can lead to physical, material and/or non-material damages. The most recent analysis point to increased pressures on workers resulting into availability during the whole day, extreme fatigue, burnout and depression.
Can new software change the game?
Besides providing oxygen to employers, data can also help workers in formulating aims and mapping risks. This way software plays an increasingly important role in shaping society, resource allocation and access to rights.
A good example of a different kind of monitoring software was created by activists at UNI Global Union, as a part of the Guardian Project. The open source WeClock App does not collect data or allow tracking by third parties. The compiled information remains on users devices. It gets shared with colleagues, labor union or other organizations only when workers decide to do so.. This application aims to define work-related issues based on data, and at the same time increase the negotiating power of the workers.
With the help of this application, the workers can independently track their working hours, breaks, the length they utilize work-related applications outside their work schedule, commuting to work, etc. This information is of particular importance during a pandemic when overtime remains unaccounted and unpaid for, but comes with all the added pressures mentioned above.
The app points toward the erasure of boundaries between what is considered private and working time, as well as, the expansion of the always-on culture.
In parallel with WeClock, another digital tool was developed in Britai – Lighthouse – as a digital governance maturity test for trade unions and other labor organizations. It provides insights in data collection, storage, and processing based on a short self-assessment query. Beside assessing the digital maturity of a project, Lighthouse also provides advice and information about useful resources and tools for further advancing data governance.
Tech workers’ future demands
To protect workers’ autonomy and privacy, socio-economic demands must address data privacy issues. It is important that workers understand the methods, the volume and the purpose of data collection; that they have and maintain access to data and the right to transfer data, as well as, the right to edit incorrect information and delete collected data sets. The demands may address filing complaints and limiting data processing for specific purposes.
In addition, some of the existing rights will change: the (previous) right to an eight-hour workday, will be reformulated into the workers right to disconnect from the internet and e-mail, upon completion of scheduled work time.
The right to disconnect is already part of the Labor Law in France, Italy and Spain; while the European Parliament recently passed a (unbinding) resolution declaring and recognizing that the right to disconnect is fundamental right of all who work from home.
However, workers’ organizing in the future will, in addition to the inclusion and application of atypical labor regulation such as the current GDPR, have to look at broader technological and societal processes. The development of digital technologies and the changing nature of work raise new questions for workers, activists and labor unions, as can be seen in the recent case of Google. Google’s representatives in initial reactions to NLRB accusations, said that terminated workers violeted company data security policies. Their claim is that the former wokrers misused the privilege of access to Google’s systems. Accordingly, this must be viewed in the context of Google’s ecosystem itself, and not in Labor Law framework.
This kind of power became possible on the interpretation of privacy as private property. Therefore, any workers’ organizing must pledge to the idea of privacy as a public, collective good, indivisible from human autonomy.
According to a Harvard professor, Shoshana Zuboff, an author of a book on surveillance capitalism, the ownership over means of production in the digital era is being replaced by ownership over production of meaning based on data extraction, its monetization, and further anticipation of human behavior. Therefore, we already have to answer the questions formulated by Zuboff as the following – who knows, who decides who knows, and who decides who decides who knows?
Translation from Serbian: L.P.
This article was originally published in Serbian on Jan 19, 2021.