Privacy Self‐Management: A Strategy to Protect Worker Privacy from Excessive Employer Surveillance in Light of Scant Legal Protections

• Published date: 01 December 2023
• Author: Robert Sprague
• Date: 01 December 2023
• DOI: http://doi.org/10.1111/ablj.12236

American Business Law Journal

Volume 60, Issue 4, 793–836, Winter 2023

Privacy Self-Management:

A Strategy to Protect Worker

Privacy from Excessive Employer

Surveillance in Light of Scant

Legal Protections

Robert Sprague*

This article examines current and future trends in worker surveillance. It also

examines the various, though minimal, legal protections workers have against

extensive work-related monitoring. With no meaningful legal protections against

excessive work-related surveillance, employees are arguably taking matters into

their own hands by engaging in deviant behaviors that attempt to thwart surveil-

lance efforts. Factoring in the ethical and managerial dimensions of a workforce

under constant and excessive surveillance, this article examines a way forward for

workers to engage in self-managed privacy, potentially leading to a less intrusive,

but still productive, work environment.

Unless we begin now to def‌ine privacy—and in particular workplace

privacy—as a value worth protecting, these new technologies will be upon us

before we are ready for them.

1

*Professor of Legal Studies in Business, Department of Management & Marketing, University

of Wyoming College of Business. The author thanks the Center for Ethics, Diversity, and Work-

place Culture at Temple University and the Center for Legal Studies and Business Ethics at

Oklahoma State University, and particularly Ariana Levinson, Professor of Law, Louis

D. Brandeis School of Law, for their invaluable feedback on an earlier version of this article

presented at the Business Ethics and the Future of Work Research Symposium.

1

Privacy for Consumers and Workers Act: Hearing on S. 984 Before the S. Subcomm. on Emp. &

Productivity of the S. Comm. on Lab. and Hum. Res., 103rd Cong. 2 (1993) (statement of

Senator Paul Simon) (“Weighing these issues will allow us to be the masters of the technol-

ogy, instead of its slaves.”).

©2023 The Authors.

American Business Law Journal ©2023 Academy of Legal Studies in Business.

793

INTRODUCTION

This article focusses on work-related monitoring and surveillance in the

United States.

2

Employers are, to a large extent, legally unrestricted in

their ability to monitor or surveil their employees.

3

Almost every action,

step, location, communication, and activity of workers has the potential

to be monitored and surveilled.

4

Current corporate surveillance tech-

niques threaten to give employers near total control over every aspect of

employment.

5

And, as detailed in this article, there are minimal, at best,

legal protections for workers from employers’ near continuous and

ubiquitous monitoring. But where the law fails, a work environment that

fosters procedural justice and privacy self-management can protect the

privacy interests of workers.

This article proceeds as follows. Part I provides a general overview of

the various monitoring and surveillance methods currently being

deployed by employers. Part II examines the various forms of potential

legal protections afforded to employees regarding work-related monitor-

ing. It f‌irst examines common law privacy, followed by a review of state

laws proscribing microchip implantation, restrictions on collecting

biometric information, and limits on GPS tracking. Part II then turns to

current and pending federal legislation that can potentially impact work-

related monitoring: the challenges presented under the Electronic Com-

munications Privacy Act and Stored Communications Act, which are

compounded by their complex language and evolving technology; efforts

2

The phrase “work-related”attempts to capture the various types of work relationships—

employees or independent contractors, working onsite or remotely. As such, although this

article may often refer to employees and the workplace, the reader is encouraged to keep

in mind the range of work relationships at play.

3

See Pauline T. Kim & Matthew T. Bodie, Artif‌icial Intelligence and the Challenges of Workplace

Discrimination and Privacy, 35 ABA J. LAB.&EMP. L. 289, 305 (2021).

4

The terms “monitoring”and “surveillance”are used almost interchangeably throughout

this article. While surveillance includes the concept of close monitoring, surveillance relates

more to watching, whereas monitoring implies maintaining a continuous record of a pro-

cess, particularly to ensure it is carried out correctly.

5

See SAM ADLER-BELL &MICHELLE MILLER,THE DATAFICATIO N OF EMPLOYMENT:HOW SUR-

VEILLANCE AND CAPITALISM ARE SHAPING WORKERS’FUTURES WITHOUT THEIR KNOWLEDGE 2

(2018), https://production-tcf.imgix.net/app/uploads/2018/12/03160631/the-dataf‌ication-

of-employment.pdf.

794 Vol. 60 / American Business Law Journal

to limit excessive employer monitoring in compliance with the National

Labor Relations Act; and an examination of the proposed “Stop Bosses

Spying Act.”As repeatedly revealed in Part II, worker legal protections

from excessive and continuous employer monitoring are scant, if exis-

tent at all. Part III explores managerial and ethical issues associated

with work-related monitoring and examines the paradox that moni-

toring may cause more deviant behavior in the workplace than com-

pliance. Part III also explores strategies for developing and

implementing ethical work-related monitoring policies and technolo-

gies in which workers participate in the development and implementa-

tion of workplace monitoring systems.

This article contributes to the literature, f‌irst, by revealing the mini-

mal extent to which workers’ privacy is legally protected and, second,

by reviewing empirical evidence that workers can indeed create their

own level of privacy in the workplace. Having workers participate in

the development and implementation of workplace monitoring sys-

tems allows workers to appreciate the relevance of the monitoring,

which promotes a sense of fairness (procedural justice), and to control

the extent of monitoring, which promotes managerial self-privacy in

lieu of legally protected privacy. As revealed in this article, workplace

surveillance and monitoring systems are growing both in terms of use

and scope. With minimal legal work-related privacy protection avail-

able, it is more important than ever that workers advocate to create

their own level of privacy.

One caveat: several legal and policy implications associated with the

use of advanced work-related automation are not directly related to

monitoring per se and are therefore not addressed in this article.

These include automation replacing humans in the workforce;

6

the use

6

See generally Miriam A. Cherry, Job Automation in the 1960s: A Discourse Ahead of Its Time (and

for Our Time),41C

OMP.LAB.L.&POL’YJ. 197 (2019) (noting that policy issues related to

technological unemployment were being raised in the 1930s, 1960s, 1980s, and again

today); Matthew W. Finkin, Technology and Jobs: The Agony and the Ecstasy,41C

OMP.LAB.L.&

POL’YJ. 221, 234 (2019) (noting that “[t]he fear of persistent, long-term unemployment

wrought by the replacement of humans by machines is a recurring motif in American

history,”arguing we should concentrate on the quality of employment and jobs in the

future); Cynthia Estlund, What Should We Do After Work: Automation and Employment, 128 YALE

L.J. 254 (2018) (charting a path for reforming employment law in the face of anxiety and

uncertainty about the future impact of automation on jobs).

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