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85 U. Cin. L. Rev. 693 (2017-2018)
Reengineering Workplace Bargaining: How Big Data Drives Lower Wages and How Reframing Labor Law Can Restore Information Equality in the Workplace

handle is hein.journals/ucinlr85 and id is 713 raw text is: REENGINEERING WORKPLACE BARGAINING: How BIG DATA DRIVES LOWER WAGES AND How REFRAMING LABOR LAW CAN RESTORE INFORMATION EQUALITY IN THE WORKPLACE Nathan Newman* Abstract While there has been a flurry of new scholarship on how employer use of data analysis may lead to subtle but potentially devastating individual discrimination in employment systems, there has been far less attention to the ways the deployment of big data may be driving down wages for most workers, including those who manage to be hired. This article details the ways big data can, and in many cases is, actively being deployed to lower wages through hiring practices, in the ways raises are now being offered, and in the ways workplaces are organized (and disorganized) to lower employee bargaining power-and how new interpretations of labor law are beginning to and can in the future reshape the workplace to address these economic harms. Data analysis is increasingly helping to lower wages in companies beginning in the hiring process where pre-hire personality testing helps employers screen out employees who will agitate for higher wages and organize or support unionization drives in their companies. For employees who are hired, companies have massively expanded data- driven workplace surveillance that allows employers to assess which employees are most likely to leave and thereby limit pay increases largely to them, lowering wages over time for workers either less able to find new employment because of their age or less inclined in general to risk doing so. Data analysis and so-called algorithmic management has also allowed the centralized monitoring of far-flung workers organized nominally in subcontractors or as individual contractors, while traditional firms such as in retail implement data-driven scheduling that resembles the on-demand employment of independent contractors. All of this shifts risk and downtime costs to employees and lowers their take-home pay, even as the fragmenting of the workplace makes it harder for workers to collectively organize for higher wages. This article addresses how we should rethink and interpret existing labor law in each of these aspects of the employment process. The * J.D., Ph.D., Adjunct Associate Professor, John Jay College Criminal Justice program, and Lehman College Sociology. I am indebted to support from members of the Information Law Institute at NYU, particularly Katherine Strandburg, as well as a wide range of feedback I received from the Privacy Law Scholars Conference where this paper was presented. 693

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