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63 St. Louis U. L.J. 55 (2018-2019)
Labor Organizing in the Age of Surveillance

handle is hein.journals/stlulj63 and id is 67 raw text is: 


                        CHARLOTTE GARDEN*

                             I. INTRODUCTION
    How  will big data and the rise of sophisticated and accessible workplace
surveillance techniques affect union organizing? This Article discusses recent
advances in workplace surveillance technology, including systems designed to
collect vast quantities of data about what goes  on  in a workplace:  when
employees  leave their work stations; to whom they talk; what they type; how
quickly they complete tasks; even their mood. Moreover, the rise of big data
means  that employers can analyze this data to obtain an increasingly detailed
and sophisticated picture of what workers are doing and how they feel about
their work.
    While these new technologies raise a host of privacy and other concerns,
this Article focuses on some of the ways they could chill workers' collective
action. Most obviously, workers  may  fear that anything they say could  be
electronically overheard by a  system designed  to help employers   identify
malcontents and agitators. Beyond that, systems designed to juice every ounce
of productivity out of workers could simply leave them without the downtime at
work  that could  lead to sharing  information about  their own  workplace
experiences and  building trust. Yet the National Labor  Relations Act (the
NLRA)-a statute   drafted to protect the right of employees to organize and
bargain collectively2 -has  remarkably  little to say about much employer
surveillance. Instead, employers are mostly free to implement   surveillance
measures  for purposes such as promoting productivity or improving security,
even if those measures could also chill union organizing. This has been true since
the days when workplace surveillance mostly had to be accomplished by human
beings, conjuring up men in trench coats who would follow workplace rabble-
rousers to the union hall in the evenings. The shift to surveillance by closed-

* Co-Associate Dean for Research & Faculty Development, and Associate Professor, Seattle
University School of Law. I am grateful for feedback on and discussion of this piece during St.
Louis University's 2018 symposium on Law, Technology, and the Organization of Work, as well
as for excellent editing by the members of the St. Louis University Law Journal.
    1. See generally, Ifeoma Ajunwa, Algorithms at Work- Productivity Monitoring Platforms
and Wearable Technology as the New Data-Centric Research Agenda for Employment and Labor
Law, 63 ST. Louis U. L.J. 21 (2019).
    2. 29 U.S.C. § 151 (2012).


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