Data and Democracy at Work by Brishen Rogers

Author:Brishen Rogers
Language: eng
Format: epub
Tags: Labor, employment, technology, automation, algorithms, artificial intelligence, data analytics, big data, machine learning, low-wage work, service work, warehouses, gig economy, retail workers, unions, labor law, employment law, wages
Publisher: MIT Press

4.2    Informational Flows and Worker Organizing

New tools of workplace surveillance and data aggregation also shape and affect workers’ capacity to organize and take concerted action. In that sense, those tools implicate both labor laws and privacy laws, which have traditionally been understood to protect quite different goods. Labor law is a means of managing class relations and is closely connected to issues of economic distribution, while privacy law protects a more varied and overarching set of individual and collective interests. Extending outward in concentric circles from the individual or data subject, those include rights of autonomy and individual expression, then dignity or freedom from humiliation, and then the ability to enter and maintain healthy intimate and professional relationships. None of those is necessarily connected to class politics—and yet a final privacy interest is. As various privacy scholars have observed, privacy protections can also foster the sorts of speech and nonintimate associations essential to strong communities and democracy more generally,42 a category that includes working-class organizations like unions.

The relationship between privacy and associational power, therefore, cannot be captured by a privacy theory based on secrecy. It is better captured by theories that understand privacy as being about rules regarding information flows, and that account for how those information flows shape the dynamic relationship among individual and group concerns and identities.43 Workers can best communicate with one another and organize in tailored versions of what one privacy scholar has called “safe social spaces,” or “environments of information exchange in which disclosure norms are counterbalanced by norms of trust backed endogenously by design and exogenously by law.”44 In particular, workers need spaces where they can deliberate and plan safely with one another while limiting companies’ ability to learn about their efforts. Current doctrine, as discussed in this chapter, assuredly does not create those safe spaces in the workplace, and those few spaces that do exist risk being closed to workers via employer surveillance. The discussion below focuses on how our labor laws give companies and managers broad authority to shape and control informational flows in the workplace.

Before doing so, it will help to review some basic aspects of worker organizing and the law. As discussed in chapter 1, unionization campaigns and tactics in the US are designed almost entirely to avoid or overcome managerial opposition. The major reason is that US employers have strongly opposed unionization, especially in comparison to their counterparts in other wealthy nations. That opposition is partly ideological and partly an economic response to our model of enterprise bargaining, which can place unionized firms at a competitive disadvantage.45 Employers often terminate union supporters, which can permanently arrest a drive’s momentum.46 While that is clearly unlawful, it can take years before the National Labor Relations Board (NLRB) reaches a final judgment and orders the typical remedy, which is reinstatement and back pay.47 In the meantime, under longstanding Supreme Court precedent, unlawfully terminated workers are required to mitigate their damages by finding another job.48 Such delays are potent anti-union tools since rational workers will often choose not to take lawful concerted action rather than risk unlawful termination.

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