The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance, Under the Labor Laws

• Published in: Berkeley journal of employment and labor law 2020-01, Vol.41 (1), p.1
• Main Authors: Bales, Richard A, Stone, Katherine VW
• Format: Article
• Language: English
• Subjects: Artificial intelligence; Employers; Employment discrimination; Human resource management; Labor law; Professional recruitment; Surveillance; Work ethic; Workers
• ISSN: 1067-7666; 2378-1882
• DOI: 10.15779/Z380000085

Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. With these tools, employers can record their workers' every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (AI) algorithms into a permanent electronic resume that can identify and predict an individual's performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by AI will accompany workers from job to job as they move around the boundaryless workplace. Thus AI and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws. This article describes the many ways AI is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on five areas of law in which AI threatens to undermine worker protections: antidiscrimination law, privacy law, antitrust law, labor law, and employee representation. Finally, this article maps out an agenda for future law reform and research.