All that automation produces data that can be used to analyze employee performance. Those analyses, whether they are done by humans or by software programs, can affect who gets hired, fired, promoted, and gets a raise. Some artificial intelligence programs can mine and manipulate the data to predict future actions, such as: likely to quit their jobs, or to diagnose medical conditions.
If your job does not currently deal with these types of technologies, it will probably be in the very near future. This worries me me—a labor and employment law scholar who investigates the? role of technology in the workplace-because unless major changes are made to US workplace law, these kinds of surveillance and privacy breaches are perfectly legal.
New technology disrupts old workplace laws
US workplace regulation has long been an outlier in much of the world. For private, non-union workers in particular, the US largely allows companies and workers to set their own working conditions.
In general, the lack of regulation for all but the most in-demand workers or those at the highest levels of business means that companies can behave however they want – although they are subject to laws prevent discrimination, set minimum wages, pay overtimeand ensure worker safety.
But most of those laws are decades old and rarely updated. They have certainly not kept up with technological progress, the increase of temporary or “gig” workand other changes in the economy.
Faced with these new challenges, the old laws mean that many employees do not have adequate protection against abuse in the workplaceor even completely exclude some employees from any protection. For example, two Trump administration offices recently stated that: Uber drivers are not employees and therefore has no right to minimum wage, overtime or the right to participate in collective action, such as joining a trade union.
Emerging technologies such as artificial intelligence, robotics, virtual reality and advanced monitoring systems have already started changing workplaces in fundamental ways that could be soon impossible to ignore. This progress underlines the need for meaningful changes in labor law.
Consider Uber Drivers
Like other companies in what’s called the gig economy, Uber has spent significant amounts of money and time litigate and lobby to protect regulations that classify its drivers as independent contractors, rather than employees. Uber set its fifth annual federal lobbying record in 2018, Spend $2.3 million on matters such as preventing drivers from being classified as employees.
The distinction is crucial. Uber doesn’t have to pay payroll taxes — or unemployment insurance premiums — to independent contractors. In addition, non-employees are completely barred from workplace protection laws. These employees are not entitled to a minimum wage or overtime allowance; they may be discriminated against on the basis of their race, sex, religion, color, national origin, age, disability and military status; they lack the right to join a union; and they are not entitled to a safe working environment.
Another company implanted radio frequency identification (RFID) chips go inside the arms of ‘volunteers’ of workers. The goal was to make it easier for employees to open doors, log into their computers, and buy items in a break room. But a person with an RFID implant can be tracked 24 hours a day. RFID chips are also sensitive to: unauthorized access or “skimming” by thieves that are only physically close to the chip.
No privacy protection for employees
The monitoring that’s possible now seems simplistic compared to what’s to come: a future where robotics and other technologies capture massive amounts of personal information to power AI software that learns which metrics are associated with things like workers’ moods and energy levels, or even illnesses like depression.
A healthcare analytics firm, whose clients include some of the nation’s largest employers, is already using employee internet search history and medical insurance claims to predict who is at risk of developing diabetes or considering becoming pregnant. The company says it only provides brief information to customers, such as the number of women in a workplace trying to have children, but in most cases it can. likely to legally identify specific workers.
With some minor exceptions — such as in bathrooms and other specific areas where workers can expect relative privacy — private sector employees have virtually no way, nor any legal right, to waive this kind of scrutiny. They may not even be informed that it is happening. Public sector workers have more protection thanks to the Fourth Amendment ban on unreasonable searches, but in government workplaces the scope of that ban is quite limited.
In contrast to the near-total lack of privacy laws protecting employees, employment discrimination laws — while far from perfect — can provide some important protections to employees. But those laws have already been criticized for their overly simplistic and narrow view of what constitutes discrimination. making it very difficult for victims to file and win lawsuits or obtain meaningful settlements. Emerging technology, especially AI, will exacerbate this problem.
AI software programs used in the recruitment process are marketed as: eliminating or reducing biased human decision-making. In fact, they can create more bias because these systems rely on: large collections of datawhich may themselves be biased.
For example, Amazon recently abandoned a multi-year project to develop an AI recruiting program because it continued to discriminate against women. Apparently the AI program learned from Amazon’s male-dominated workforce that being a man was associated with being a good worker. To its credit, Amazon has never used the program for actual hiring decisions, but what about employers who don’t have the resources, knowledge, or desire to identify biased AI?
The laws on discrimination based on computer algorithms are unclear, just as other technologies stretch labor laws and regulations well beyond their obvious applications. Without an update to the rules, more workers will remain outside of traditional worker protections — and may not even realize how vulnerable they really are.