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CDT Report – Warning: Bossware May Be Hazardous to Your Health

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CDT Report – Warning: Bossware May Be Hazardous to Your Health Warning: Bossware May Be Hazardous to Your Health ABOUT CENTER FOR DEMOCRACY & TECHNOLOGY The Center for Democracy & Technology is a 501(c)(3) working to promote democratic values by shaping technology policy and architecture, with a focus on the rights of the individual. Based in Washington, D.C., and with a presence in Brussels, CDT works inclusively across sectors to find tangible solutions to today's most pressing technology policy challenges. Our team of experts includes lawyers, technologists, academics, and analysts, bringing diverse perspectives to all of our efforts. Learn more: cdt.org/ This paper is made possible with the support of the Ford Foundation. Special thanks to Annette Bernhardt, Ryan Gerety, Aaron Rieke, Reem Suleiman, and Laura Stock for their feedback and guidance. AUTHORED BY Matt Scherer, Senior Policy Counsel for Worker Privacy Center for Democracy & Technology Table of Contents Executive Summary …………………………………………………………………………………. 4 ● The health and safety risks of intrusive worker surveillance …...……………………… 4 ● Existing laws provide limited protection …………………………………………………. 4 ● Action is needed to fully safeguard workers …………………………………………….. 5 ○ Recommendations for Policymakers & Enforcement Agencies ………………. 5 ○ Recommendations for Workers & Advocates ………………………………...… 6 ○ Recommendations for Employers ……………………………………………….. 6 I. The Rise of Bossware ………………………………………………………………………. 8 A. Advances in worker surveillance and algorithmic management ……………… 8 1. Warehouses: Handheld taskmasters ……………………………………. 10 2. Call centers: Robots monitoring your downtime – and your empathy ………………………………………………………. 11 3. Remote workers: The boss in your bedroom …………………………… 12 B. Continuous monitoring and automated management: a dangerous mix ……………………………………………………………………. 13 II. Current Legal Protections ………………………………………………………………….. 15 A. The OSH Act and OSHA Standards ……………………………………………….. 16 1. The protections of the OSH Act and OSHA standards …………………. 16 2. The right to restroom breaks aside, OSHA standards offer limited protection for the health and safety risks associated with employers’ use of bossware ……………………………………….. 17 a) OSHA requires employers to provide reasonable access to toilet facilities, which means employers cannot adopt policies that effectively penalize employees for using the bathroom ……………………………… 18 b) OSHA does not impose specific obligations relating to ergonomics, fatigue, or pace of work, though the General Duty Clause still applies ……………………………. 18 c) OSHA does not have standards relating to job strain or mental health …………………………………………………… 20 d) OSHA does not enforce its standards in home offices ……….... 21 B. The Americans with Disabilities Act (ADA) ……………………………………….. 22 1. The protections of the ADA ……………………………………………….. 22 2 2. The ADA requires employers to accommodate disabled workers when deploying bossware …………………………………….. 24 a) The ADA prohibits employers from penalizing disabled workers for taking needed breaks ……………………………… 24 b) Disabled workers may be entitled to pace-related accommodations under the ADA ………………………………. 25 c) The effects of job strain and psychological stress …………….. 26 C. Other federal and state laws ……………………………………………………… 27 1. Federal law prohibits automated pay docking for breaks or downtime and may provide additional protection to certain workers …………………………………………………………………….. 27 2. State laws, including workers’ compensation laws, may provide protection or compensation for workers whose health is harmed or threatened ……………………………………………………. 29 III. Protecting the Workforce: Recommendations for Policymakers and Enforcement Agencies …………………………………………………………………………………...… 30 A. Extending OSHA’s standards to cover the foreseeable consequences of bossware …………………………………………………………………………. 30 1. Covering the effects of fatigue and repetitive motion injuries ……….. 31 2. Creating OSHA standards regarding job strain and mental health ….... 32 3. Enforcing OSHA standards in home offices and other remote Workspaces ………………………………………………………………… 33 B. Confirming and enforcing employers’ ADA obligations ………………………… 34 C. Regulating technology and exploitative practices directly …………………….. 35 IV. Recommendations for Workers and Advocates …………………………………………. 36 V. Recommendations for Employers ……………………………………………………….... 38 VI. Conclusion ………………………………………………………………………………….... 39 3 Executive Summary ...The health and safety risks of intrusive worker surveillance.. Employers are increasingly deploying technologies (bossware) that allow both continuous surveillance of workers’ activities and automation of the task of supervising them. Enabled by the limited privacy protections that American law affords employees, and the wide latitude that American law gives companies to dictate workers’ on-the-job activities, bossware allows companies to monitor workers’ physical movements and pace of work in unprecedented detail. Employers feed the data collected by sensors and activity tracking systems into algorithmic management platforms that automate some or all of the tasks traditionally employed by human managers, including assessing workers’ productivity and performance and making disciplinary decisions. Increasingly, companies are using bossware to enforce a faster pace of work and crack down on breaks and other forms of employee downtime. This report focuses on how bossware can harm workers’ health and safety. In particular, it emphasizes how bossware can: ● Discourage and even penalize lawful, health-enhancing employee conduct, including taking breaks to rest when needed to avoid fatigue or to use toilet facilities. ● Enforce a faster work pace and reduce downtime, which increases the risk of physical injuries, particularly those stemming from repetitive motion. ● Increase risk of psychological harm and mental health problems for workers — particularly due to the effects of job strain, which occurs when workers face high job demands but have little control over their work. ...Existing laws provide limited protection.. Federal law provides some potential avenues for workers, particularly those with disabilities, to challenge the threats to their health and safety associated with bossware. ● The Occupational Safety and Health Act (OSH Act) requires employers to maintain a safe and healthful workplace, both in general and through specific standards that the Occupational Safety and Health Administration (OSHA) issues. For example, employers may violate the OSH Act if they prevent workers from using the restroom or penalize them for doing so. 4 ● The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate disabled workers and avoid adopting practices and standards that have the effect of discriminating against them. The ADA provides robust protections to disabled workers due to employers’ affirmative obligation to consider the impact of workplace standards on people with disabilities and to provide reasonable accommodations where necessary. ● Federal wage and hour law also prohibits a feature of some bossware platforms — automatically docking workers’ pay for leaving their workstation or for deactivating bossware features. ...Action is needed to fully safeguard workers.. Existing federal statutes and regulations do not adequately protect workers' health and safety. Current laws were not designed for a world where employers use technology to continuously monitor employees, impose a grueling work pace, and effectively eliminate workers’ discretion to take breaks or determine when and how they perform their assigned tasks during the workday. Additional legislation and regulation will be needed to fully protect workers’ well-being, and workers need to better understand their rights under current law. Recommendations for Policymakers & Enforcement Agencies ● To reduce the incidence of fatigue-related injuries and repetitive motion injuries stemming from employers’ use of bossware, OSHA should issue standards regarding rest breaks, work pace, and other factors that affect the frequency and severity of such injuries, and the use of technologies in a manner that increases the risk of such injuries. With congressional authorization as needed, OSHA should also issue general ergonomics standards to firmly establish employers’ obligation to avoid technologies and practices that contribute to repetitive motion injuries. ● OSHA should protect workers from the effects of job strain by issuing standards regulating employer practices, such as the use of bossware, that tend to generate or exacerbate job strain. ● OSHA should begin enforcing its standards in home offices where employers use bossware to monitor and control the activities of their workers. ● To ensure that new standards and guidance are optimally targeted, the National Institute for Occupational Safety and Health (NIOSH) should conduct additional research to determine the impact that employers’ use of bossware has on repetitive motion injuries, job strain, and other threats to workers’ physical and mental health. 5 ● The Equal Employment Opportunity Commission (EEOC) should issue guidance clarifying that employers cannot use bossware to establish or enforce standards that inherently disadvantage disabled workers. Recommendations for Workers & Advocates ● Workers’ advocates should ensure that workers understand their rights under applicable laws and encourage them to document and report uses of bossware that threaten their well-being. ● Disabled workers should inform their employers of any limitations that require them to take breaks, have a less
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