This post is part of a symposium on Worker Surveillance & Collective Resistance. Read the rest of the posts here.
As part of its investigation into workplace safety and health hazards in Amazon warehouses, OSHA recently cited three Amazon facilities for violating the OSH Act’s General Duty clause, which requires employers to keep workplaces “free from recognized hazards.” In the citations, the agency details how employees at these facilities were exposed to ergonomic hazards, identifying specific tasks and package handling processes that heighten workers’ risks for musculoskeletal injuries. For example, a New York warehouse was cited because employees there were required to “repeatedly lift packages” at a “high frequency, placing them at risk for lower back injuries.” To mitigate this risk, OSHA recommended, among other things, that Amazon install redesigned workstations, multiple person lifts, and new machines to reduce manual lifting.
However, OSHA’s citations and news release failed to mention a major cause of Amazon’s twice-the-national-average injury rate: the company’s grueling worker surveillance and automated management regime. As a condition of employment, Amazon workers submit to the company measuring their “time off task” (ToT) and “rate,” which refer to time that their handheld scanners are idle and the number of packages scanned, respectively. ToT and rate goals are often opaque to workers and can lead to disciplinary action including termination, so workers move as quickly as they can. As they move faster and take fewer breaks, the risk of injury increases. As a result, Amazon workers suffer serious injuries at twice the rate of other warehouse workers, with that multiple reaching as high as five times in some Amazon facilities.
The connection between Amazon’s worker surveillance practices and its high injury rates is clear. Researchers at the National Employment Law Project released a report describing the “culture of fear” that the company’s surveillance and disciplinary systems create, which causes workers to push their bodies in risky ways. The Washington state-level OSHA recognized as much last year when it cited Amazon for ergonomic hazards in its facilities. As the citation highlighted, “[t]here is a direct connection between Amazon’s employee monitoring and discipline systems and workplace” musculoskeletal disorders. Amazon, for its part, is vigorously appealing the citation, even bringing a constitutional challenge to the state agency’s authority.
As OSHA continues its investigation into the company, it should focus on the root causes of Amazon’s abysmal workers’ safety record, including its surveillance and automated management systems. More generally, as intense forms of worker monitoring have become increasingly common across the economy – including in the logistics sector, meatpacking, agriculture, the gig economy, and franchise companies – regulators need to recognize that, beyond raising obvious privacy concerns, electron worker surveillance is contributing to a wide range of troubling trends across employment and labor law. In the remainder of this post, I highlight a few of the most salient areas of concern.
One way that surveillance undermines labor law is by allowing firms to exert control over workers with whom they disclaim having an employment relationship. Under the NLRA, workers can bargain with and file labor law complaints against their employer. In the modern economy, though, identifying a worker’s actual employer (or employers) can be a deceptively complex task. “Lead” firms often franchise their businesses or contract out work to third-party staffing agencies that directly employ workers (for example, Amazon contracts with local logistics companies to deliver most of their packages). Deciding whether those workers can hold a lead firm liable for labor law violations turns on whether the NLRB considers the lead firm to be a joint employer of the worker. The basics of the test are rooted in judicial precedent and focus on the level of control a company has over a worker. In the days before sophisticated surveillance technologies, companies that wanted to exert control over its workers – usually with the goals of increasing worker speed and imposing discipline – had to hire additional on-site supervisors to monitor and manage those employees. Since courts have long recognized on-site supervision as a hallmark of a traditional employment relationship, companies that desired increased control had to adhere to traditional employer responsibilities like liability under workers’ compensation, wage and hour, and labor statutes.
No longer. As Governing for Impact detailed in a regulatory comment to the NLRB last year, companies increasingly implement surveillance technologies and practices that allow them to retain control over workers with whom they disclaim an employment relationship, preventing workers from exercising their rights under labor law.
For example, McDonald’s is mostly a franchise business, which means that the ubiquitous golden arch stores are primarily owned and operated by individual franchisors, who hire their own employees. Instead of directly employing store managers and their employees, McDonald’s purports to be involved in a business-to-business relationship with the franchise owner. However, even though McDonald’s is not the workers’ immediate employer, the company has strengthened its control over workers in recent decades as it increased surveillance over its franchisors’ employees. In the 2010s, McDonald’s started requiring franchises to implement various surveillance technologies in their businesses. For example, the company installed point-of-sale technology on franchisee cash registers, which allowed headquarters to monitor transaction speed and frequency.
In 2014, the NLRB’s General Counsel issued a complaint against McDonald’s for alleged labor law violations that centered on the company’s retaliation against workers for their participation in the “Fight for $15” movement. The General Counsel alleged that McDonald’s surveilled, fired, and disciplined workers over their protests for higher wages, which is activity that Section 7 of the NLRA protects. Not only did McDonald’s deny having participated in the alleged conduct, the company also denied possessing any labor law obligations to McDonald’s workers whatsoever. The company claimed that the workers were employed by the franchisees alone, and therefore McDonald’s was not liable under the NLRA. In a settlement agreement negotiated by a conservative NLRB General Counsel, McDonald’s was allowed to absolve itself of joint employer liability for the labor law abuses.
Beyond allowing franchisors to exert control over “non-employees,” electronic surveillance also enables companies to misclassify their workers as independent contractors (further “fissuring” the workplace). For example, rideshare companies like Via and Uber tightly control their supposedly non-employee workers through ride and job assignment and speed-monitoring apps, customer reviews, and cameras. A recent Data & Society report detailed how delivery companies, in addition to dictating routes and shifts through their driver phone applications, use the growing network of digital doorbell cameras to enlist consumers in the surveillance of the independent contractors who complete deliveries.
Thankfully, the Department of Labor has recognized this trend, and has recently included a discussion of electronic supervision as a factor in its proposed regulation for determining employee versus independent contractor status. Whether this will lead to meaningful enforcement is yet to be seen.
Amazon’s one-size-fits-all electronic surveillance and automated management systems also may violate workers’ rights under workplace discrimination laws. As state agencies are beginning to recognize, Amazon is too often slow and reluctant to allow workers reasonable accommodations in its warehouses, and instead fires workers with disabilities and pregnant workers or forces them to take unpaid leave. Workers are also afraid to take bathroom breaks, which can be violative of their rights under safety and health law and disability law. As the Center for Democracy and Technology explained in a report, companies should not use “bossware” to enforce standards that inherently disadvantage disabled workers.
A key driver behind these potential disability law violations is Amazon’s unwillingness to individualize aspects of its electronic surveillance automated management systems, including “rate” and “ToT” measures described above. Without transparency into or flexibility within the company’s rigid and punitive disciplinary system, workers may be forced to proceed without accommodations or face discipline.
As the examples above indicate (and there are certainly others), the rise of electronic surveillance and automated management should not be seen as merely imposing some new, discrete set of harms on workers. Rather, pervasive employee monitoring should be seen as altering the employment context in a way that threatens a wide range of law and employment law protections. These practices are becoming more entrenched by the day, and policymakers and regulators must make every effort to ensure workers are protected.