In my forthcoming article, Management Culture & Surveillance, I argue that we should be worried about management overreach in the use of workplace surveillance. Based on new evidence of modern management’s roots in the slave plantations of the U.S. South and West Indies, we should be particularly concerned about management arguments for surveillance based on a business’ perceived need for increased productivity and enterprise control.

In their 2017 landmark article, Limitless Worker Surveillance, professors Ajunwa, Crawford, and Schultz detail the ineffectiveness of U.S. privacy laws to prevent invasive workplace surveillance, and they note that “technologies, both digital and otherwise, have become the primary tools of employee monitoring.”  As they summarize workplace conditions in the U.S., “[t]he rapid erosion of technological and economic constraints on employee monitoring has magnified the invasiveness of surveillance activities.”

My article picks up where professors Ajunwa, Crawford, and Schultz leave off to discuss elements of limitless worker surveillance that have not been otherwise directly addressed in the law-review literature. New work in history and management studies is unearthing the roots of modern management techniques as developed in the slave plantations of the U.S. South and West Indies. Attempts to sanitize these techniques’ origins occurred within living memory of the Civil War when engineer Frederick Winslow Taylor claimed them as part of his system of scientific management. Nonetheless, Congress at the time was not fooled. In questioning and in Taylor’s testimony before Congress in 1911–1912, we have the shape of the modern debate over the impact that these management techniques have on workers. What is different about today’s version of the debate is how much more invasive technological surveillance has become.

Moreover, in connecting the concerns from the congressional debate to the modern day, my article describes some of the ways in which the harms it highlights live close to the surface of our modern consciousness in the popular form of zombies (with their history in West Indian slavery) and the emotionally disconnected state of feeling like a human robot. My article concludes with initial suggestions for better scrutinizing why management needs certain data and evaluating how harmful the collection of that data may be to workers.

I argue that future principles for the use of worker surveillance and data should ask:

• Who is affected? This is an inquiry into how extensive the surveillance is and who experiences it. For example, why do businesses need to install GPS monitoring on all their workers’ phones if only a few of them ever leave the workplace for business purposes during business hours?
• Degree of impact? This is an analysis of the impact the type of surveillance will have on the psyche of workers. Is it surveillance that they can meaningfully turn off when they are legitimately “backstage?” Will this surveillance yield information that is not the manager’s legitimate business or that may have discriminatory impact such as women’s fertility status and menstrual cycle?
• How monitoring is experienced? This is a concern that certain types of monitoring are experienced as particularly oppressive, invasive, or demoralizing. Do the workers have to be implanted with a microchip that is not easily removed? Do the workers have to be strapped into an exoskeleton that transports them from place to place or wear a wrist band that guides their hands with haptic feedback to the location that the manager desires?
• Are the data needed? This is a question about whether all the data are needed and how much additional information not necessary to managers may be swept up in the data’s collection. If, for example, managers establish a specific need for GPS monitoring during certain times, do they need workers to wear trackers that also collect health information such as heartbeat, steps walked, sleep patterns, temperature, and so on?
• Is the effort counterproductive in the long-term? This is a discussion about the long-term culture and impact that too much surveillance has on the workplace. Is it changing the workplace to destroy worker morale and ethical engagement? This set of concerns seeks to flip the lens through which both businesses and regulators have been thinking about workplace surveillance to consider its corrosive effects.

The time to be thoughtful about such questions is now. Business interests in surveillance and its accompanying behavioral modification techniques will only become stronger as businesses watch their competitors adopt the same technology.

As Professor Zuboff describes in the surveillance capitalism context, “it becomes clear that demanding privacy from surveillance capitalists or lobbying for an end to commercial surveillance on the Internet is like asking Henry Ford to make each Model T by hand.”  Businesses, as in dealing with slavery in the U.S. South and West Indies, will argue that giving up or modifying the way in which they have produced profits at the expense of workers is “like asking a giraffe to shorten its neck or a cow to give up chewing. Such demands are existential threats that violate the basic mechanisms of the entity’s survival.”  Just as abolitionists’ demands were met with retrenchment on the part of slave owners, “[h]ow can we expect companies whose economic existence depends upon behavioral surplus to cease capturing behavioral data voluntarily?”  Businesses think of this request as being asked to commit “suicide.”

But slave owners were forced to give up their slaves and confront the harms inflicted by their methods of production. My article does not directly correlate the harm of modern limitless surveillance with the vastly more debilitating combinations of harms suffered from historic slavery, but it argues that there are harms from limitless worker surveillance that must be both acknowledged and mitigated. The hard-won gains for all from the Civil War should not be eroded. There must be boundaries in the endless pursuit of owners’ aggregation of profits. We cannot easily expect management to come to this conclusion itself, nor in a competitive economy expect that it will have the support of boards and investors to walk such a different road alone.

These are questions and the establishment of boundaries that we will have to struggle with together. Such issues need to be openly debated in the light of day, and with full realization of how dark the path of modern management has been. My next article will continue to frame these questions for potential legislation and judicial review.

This post comes to us from Professor Josephine Sandler Nelson (writing as J.S. Nelson) at Villanova Law School. It is based on her forthcoming article for the Berle XI Symposium on Corporate Culture, “Management Culture & Surveillance,” which is available here.