Limitless Worker Surveillance

Article Source: California Law Review, Vol. 105, No. 3, pp. 735-776, 2017
Publication Date:
Time to Read: 2 minute read
Written By:

 Jason Schultz

Jason Schultz

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Technological changes now enable employers to track the movement of employees inside and outside the workplace. The law has not changed to respond to this new type of surveillance. The loss of workers’ privacy is harmful in itself; worker privacy should be considered a civil right.


Policy Relevance:

Worker privacy should be protected by federal law.


Key Takeaways:
  • Workers have little power to object to constant surveillance.
    • Employers log keystrokes to monitor employee’s use of Google and Facebook.
    • Employers claim that monitoring is needed to promote efficiency and innovation.
    • Constant monitoring causes stress, and employees may take risks to beat the system.
  • Because a government employer’s action is “state action” under the United States Constitution, public employees have more privacy protection than employees of private firms.
  • Some state laws protect employees from some types of monitoring.
    • The most protective allows video surveillance but not audio surveillance.
    • Some laws protect only intimate worker spaces such as restrooms.
    • Some states only require that employers notify employees of monitoring.
  • A few states, like Maryland, restrict employer access to employee social media accounts, or limit location tracking of workers.
  • In the least protective states, like Massachusetts, the employer’s legitimate business interest in tracking often prevails over the worker’s right to privacy.
  • New privacy issues will arise due to employers’ increasing interest in encouraging employee participation in wellness programs; collection of wellness data could be a back door to discrimination against obese employees or those who smoke.
  • The use of productivity apps and big data to promote efficiency in the work place discounts worker’s privacy interests.
  • The best way to protect workers’ privacy would be to pass a federal law specifically addressing employer surveillance of employees; the law should prohibit surveillance that extends to activities other than work tasks.



 Ifeoma  Ajunwa

About Ifeoma Ajunwa

Ifeoma Ajunwa is the AI.Humanity Professor of Law and Ethics and the Founding Director of the AI and the Law Program at Emory Law. Starting January 2024, she will also be the Associate Dean for Projects and Partnerships. Additionally, Professor Ajunwa has been a Faculty Associate at the Berkman Klein Center at Harvard University since 2017. Her research interests are at the intersection of law and technology with a particular focus on the ethical governance of workplace technologies, and also on diversity and inclusion in the labor market and the workplace.

Kate Crawford

About Kate Crawford

Kate Crawford is a Research Professor of Communication and Science and Technology Studies at USC’s Annenberg School for Communication and Journalism and a Senior Principal Researcher at Microsoft Research in New York. Professor Crawford is a leading scholar of the social and political implications of artificial intelligence. Over her 20-year career, her work has focused on understanding large-scale data systems, machine learning and AI in the wider contexts of history, politics, labor, and the environment.