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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: LABOR ORGANIZING IN THE AGE OF SURVEILLANCE 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). 55