An estimated 60% of large employers use workplace monitoring tools, some of which can be used to chill organizing.

By Jo Constantz for Capital and Main

Last January, at the height of the pandemic, an elderly housekeeper at a former hotel in Long Beach, California, that was being used to quarantine people with COVID-19 tested positive for the virus and died. That prompted the union that represents hotel workers in Southern California to file a complaint with the state and the National Labor Relations Board alleging that the hotel failed to follow pandemic safety protocols. Hotel workers met regularly to discuss their health, the safety situation and to strategize about how to address their complaints with the company, Holliday’s Helping Hands, which had been contracted by Los Angeles County to run the facility.

During a Zoom call set up by union representatives and employees who had organized a worker organizing committee, “We noticed that managers of the company had busted into the meeting—they had crashed our Zoom call,” recalls Lorena Lopez, a director of organizing with UNITE HERE Local 11. “Workers started to get very nervous and shut down their cameras so they wouldn’t be recognized. I was running the meeting and asked everyone to ID themselves. But the company people refused.” During the meeting, a worker on the cleaning crew had volunteered to be the spokesperson for the group. According to Lopez, this worker was confronted by management the next day and pressured to quit.

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“They were spying on us—and it was easy to do via Zoom,” she says. Under a settlement agreement with the NLRB, the company agreed to post flyers informing employers of their right to unionize and pledged not to ask them about organizing efforts and not to surveil their Zoom meetings. A lawyer for the company did not return requests for comment.

Workplace surveillance, already widespread in the U.S., has become even more prevalent during the pandemic as employers try to enforce public health measures and monitor remote workers. According to research by Gartner, a market research firm, 60% of large employers use workplace monitoring tools, twice as many as before the pandemic. Coworker.org, a labor research nonprofit, recently compiled a database of over 550 of these commercially available products, which it dubs “little tech,” and published a study outlining potential harms and noting the industry’s general lack of regulation.  

“Employers do have surprising freedom to monitor what their employees do on their own systems.”

~ V. John Ella, a Minneapolis-based employment and business lawyer.

  Technology-enabled surveillance—from keycard tagging and email monitoring to social media tracking and worker profiling—often introduced in the name of safety and productivity can have a chilling effect on organizing and allow companies to sidestep labor law. It enables employers to profile workers and gain insights into employees’ private lives and their sentiments—who’s likely going to be the most outspoken? Why is that single Black mother now meeting with those two workers with strong political views?—and allows them to develop algorithms to predict union vulnerabilities.

Amazon and Walmart are two of the best-known examples of employers using surveillance technology during union battles, sometimes skirting the law. Leaked internal documents from Walmart included methods for monitoring employee activity and conversations about union activism, Amazon’s Whole Foods utilized heat maps that were based on predictive analytics to track store locations considered at high risk of union activity, and Google reportedly has a system to alert managers to any internal meetings scheduled with 100 or more employees, “partially to weed out employee organizing,” according to the human resources newsletter HR Brew.

Since at least September, HelloFresh, which has been locked in a bitter struggle with UNITE HERE, which seeks to organize its workers, has been tracking social media posts about union activity using a marketing tool called Falcon. It’s reportedly discussed monitoring the employees behind such posts and even reported such posts as spam to diminish their visibility. The company explained to Vice that “it is our duty to correct misinformation and mischaracterizations of our company.”

Such tactics are often used to turn employees against each other, says Ricardo Hidalgo, an international organizer with the Teamsters, who has helped unionize machinists and sanitation workers. Company managers and the consultants they hire will try to sneak anti-union managers into group texts and WhatsApp groups to track discussions about organizing activity. “I’ll tell worker(s), ‘There’s a snitch among you.’ That’s how bad it gets.” (Disclosure: The Teamsters are a financial supporter of Capital & Main.)  

Surveillance has been a component of anti-union campaigns since the Pinkerton National Detective Agency began infiltrating unions in the 1870s.

  There are few restrictions on how these tools are used. “Employers do have surprising freedom to monitor what their employees do on their own systems,” said V. John Ella, an employment and business lawyer based in Minneapolis.

These practices became even more invasive as the shift to remote work dissolved boundaries between home and work for many.

Surveillance has been a component of anti-union campaigns since the Pinkerton National Detective Agency began infiltrating unions in the 1870s. The passage in 1935 of the National Labor Relations Act, which established the right to form a union, did not address spying directly, though the practice is at odds with the act’s aim to protect concerted activity.

Over the years, case law has accrued to delineate what kinds of surveillance constitute an unfair labor practice. According to research by Charlotte Garden, a professor at the Seattle University School of Law, the NLRB has found a range of practices to breach the law, including “watching employees with binoculars, watching union activity on a daily basis and for hours at a time, posting guards in previously unguarded areas, [and] photographing or videotaping employees and monitoring their phone calls in response to union activity.”

In general, though, if an employer sees union activity out in the open, it isn’t considered an unfair labor practice. The NLRB judges whether the employer’s methods are “out of the ordinary” in a manner that chills collective action. As Garden notes, this allows employers to “set the baseline”—and encourages the adoption of the broadest possible surveillance.

Today’s technology drastically reduces the amount of work you need to do to keep tabs on workers, making comprehensive surveillance financially viable for the first time.

Companies can install commercially available software from firms like ActivTrak, HiveDesk, and Teramind to track keystrokes, take periodic screenshots of employees’ desktops and monitor email. “To some extent these surveillance technologies are a little harder to spot, [which] arguably allows them to engage in surveillance that’s more hidden and maybe less known,” says Wilma Liebman, former chair of the NLRB, and can potentially give companies an advantage during tense union elections. “To the extent that they’re able to track employees’ emails, they would be able to [know] what the communications are and the substance of them, giving them insight into pre-union activity, employee discontent.”  

Employers are charged with violating federal law in 41.5% of all union election campaigns, according to a report from the Economic Policy Institute.

  Some elements of surveillance have become so commonplace that they’re easy to overlook. ID badges, for example, can be used to monitor employees’ movement within a workplace, tracking whom they meet with and when. While technology has changed, labor law has not.

Comprehensive surveillance is quickly becoming standard practice, even though it is illegal under labor law for companies to spy on unionization efforts and other protected activities, whether that activity is covert or overt (and intended to intimidate workers).

It’s not a theoretical issue. Employers are charged with violating federal law in 41.5% of all union election campaigns, according to a report from the Economic Policy Institute. Almost 14% of union elections included a charge of coercive surveillance, though the researchers said this figure is likely an underestimate since many cases go unreported.

One issue that complicates the situation is that labor law was written in the 1940s, and its protections are grounded in “distinctions around being on or off the physical worksite or activities during work hours or during breaks” that are largely obsolete for a modern workforce that involves remote workers checking their cellphones, according to a report by labor market policy analyst Kathryn Zickuhr.

Daniel Hanley, a senior legal analyst at the Open Markets Institute and the author of a report on Amazon’s surveillance practices, said surveillance tends to have a “creeping” effect: You accept a little bit, which opens the gate to the next bit—until, eventually, it’s hard to know how much is actually necessary.

Amazon warehouses are decked out with security cameras integrated with artificial intelligence to analyze workers’ every move. Item scanners used by employees keep track of the amount of time it takes to complete a task—too much time off task can lead to warnings or termination. Even drivers, most of whom are independent contractors, are monitored closely: Data is collected on things like vehicle location, braking and speed while cameras inside the vans watch for signs of unsafe behavior.  

“It used to be that workers could feel pretty comfortable talking with their co-workers, as long as the supervisor wasn’t within earshot. You don’t really have that luxury anymore.”

~ Matthew Bodie, professor at Saint Louis University School of Law

  Amazon, in particular, will continue to find “ever more imaginative means to surveil workers,” Hanley  said. “There’s really nothing that they’re not going to figure out.”

Given its outsize role in the American economy, Amazon’s practices are likely to be imitated by other corporations. Among the measures that have raised eyebrows at the company are buying software that could help it analyze and visualize data on unions, monitoring employee listservs known for their activism and tracking the use of Facebook groups by contract drivers to plan strikes. The company has insisted that those programs were not intended to clamp down on organizing efforts by workers.

FedEx and UPS delivery trucks have also been outfitted with driver-facing cameras, raising concerns that the audio and video monitoring chills protected union activity. Walmart, famously anti-union, patented technology in 2018 that could record and analyze audio at checkout counters to gauge how cashiers were interacting with customers.

Given the level of surveillance in some workplaces, it can feel like there’s no refuge. “It used to be that workers could feel pretty comfortable talking with their co-workers, as long as the supervisor wasn’t within earshot,” said Matthew Bodie, professor at Saint Louis University School of Law. “You don’t really have that luxury anymore, that kind of private space.”

Such monitoring can create the monotone hum in your mind that you are constantly being watched. It’ll get you to question: “Should I talk to other people? How can I talk to them? How do I know Amazon doesn’t know?”

If an employer came across evidence of organizing while collecting data for other purposes, they would essentially have to ignore some of that information and compartmentalize it in a way that protects the employees from retaliation, per labor law.  

Though surveillance is one of the most serious unfair labor practices, it can be extraordinarily difficult to prove that an employer was engaged in such activity.

  But under “at will” employment agreements, employers can fire workers for any reason or no reason at all.

It’s often in employers’ interests to do so. A study by Anna Stansbury, an assistant professor at the MIT Sloan School of Management and a senior fellow at the Peterson Institute for International Economics, found that a typical business may have an incentive to illegally fire a worker it suspects of organizing if it would diminish the probability of unionization by just 0.15% to 2%.

Though surveillance is one of the most serious unfair labor practices, it can be extraordinarily difficult to prove that an employer was engaged in such activity. Management can argue that they just check the data in an emergency, though it’s nearly impossible to know exactly how they’re using all of the information they’re collecting.

Organizers say that in this context, maintaining secrecy is crucial. The process can be painstaking as organizers try to keep everything under wraps.

Calvin Skinner, an organizer at the SEIU-UHW, said that during one recent two-year campaign, “We had to be so covert until we filed for the election.”

Most organizers are well versed in using secure, private means of communication like Signal, an encrypted messaging app, and avoiding company devices that can be monitored. But acting in such secrecy fosters a feeling of wrongdoing. “If it’s too secret, too confidential, then it starts to feel illicit,” said Bodie. “It’s like, oh, we shouldn’t be doing this.”

Sometimes an employer’s use of technology to surveil its workers can backfire, like at the Amazon warehouse in Staten Island, where the all-encompassing surveillance system has spurred organizing efforts. Spokespersons for Amazon have described its employee monitoring efforts as prudent business measures, according to the Washington Post.

Sometimes, such invasive surveillance can also turn off company managers and even turn them into whistleblowers. Several years ago, Tim Dubnau, deputy director of organizing at the Communication Workers of America, said he was contacted by a high-level manager at Verizon Wireless. “He felt awful about the union-busting.” In a 2020 ruling, an NLRB administrative law judge found that the company’s search of an employee’s personal property “would reasonably be construed to permit unlawful search and surveillance of employees’ organizing. …” And in 2018, the company settled with the NLRB after the CWA filed an unfair labor practice charge related to an employee’s claim that they were surveilled for engaging in union activity. A spokesperson for Verizon denies that it engages in surveillance, stating that it “respects and follows the law and employee rights” under labor law. “Our company does not engage in surveillance of employees’ union activities.”

Unit, a startup with the goal of streamlining the unionization process, has leveraged its technical expertise directly. Managers and supervisors are not permitted on the platform. An election petition signature is needed to access the platform, a requirement designed to limit access to supporters.

Unit’s FAQ page advises users not to use the app during working hours or on work-related devices or networks. “It is illegal for your employer to spy on your union, whether on the Unit app or in real life,” the site says. “Sometimes employers disregard the law, so to keep your information private, we recommend only using personal devices and non-work internet to access Unit.”

The platform collects data from all who register, including a verified email address and an IP address. In case anyone from management tries to gain access—a clear violation—they’ll have evidence. “We surveil the surveillers,” said founder James White.

Workplace monitoring, of course, isn’t all bad: Some surveillance practices can help ensure safety, detect and prevent harassment, and provide constructive employee feedback.

The key, according to Hanley, is to incorporate workers into the decision-making process. “What are their health and safety concerns? Maybe they say, you know what? This technology, we actually could use it,” said Hanley. “But that’s for them to decide.”

Yet it’s hard to imagine a company like Amazon willingly relinquishing control in this area to its workers. It’s a Catch-22: Workers won’t get a say until they win a seat at the bargaining table.

Copyright 2021 Capital & Main.

Marcus Baram contributed to this story.