Request for Information; Automated Worker Surveillance and Management, 27932-27936 [2023-09353]

Agencies

• Office of Science and Technology Policy

[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Notices]
[Pages 27932-27936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09353]


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OFFICE OF SCIENCE AND TECHNOLOGY POLICY


Request for Information; Automated Worker Surveillance and 
Management

AGENCY: Office of Science and Technology Policy (OSTP).

ACTION: Notice of request for information (RFI).

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SUMMARY: Employers are increasingly using automated systems to monitor, 
manage, and evaluate their workers. These systems may allow employers 
to manage supply chains, improve health and safety, or make other 
informed business decisions. At the same time, applications of 
surveillance and monitoring systems can also pose risks to workers, 
including to their health and safety, equal employment opportunities, 
privacy, ability to meet critical needs, access to workplace 
accommodations, and exercise of workplace and labor rights, including 
their rights to form or join a labor union. The White House Office of 
Science and Technology Policy (OSTP) seeks comments from the public to 
better understand automated surveillance and management of workers, 
including its prevalence, purposes, deployment, and impacts, as well as 
opportunities for Federal agencies to work with employers, workers, and 
other stakeholders to ensure that these systems do not undermine 
workers' rights, opportunities, access, health, or safety.

DATES: Interested persons and organizations are invited to submit 
comments on or before 5 p.m. ET, June 15, 2023.

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at regulations.gov. However, if you require an accommodation or 
cannot otherwise submit your comments via regulations.gov, please 
contact the program contact person listed under FOR FURTHER INFORMATION 
CONTACT. OSTP will not accept comments by fax, or comments submitted 
after the comment period closes. To ensure that OSTP does not receive 
duplicate copies, please submit your comments only once. Additionally, 
please include the Docket ID at the top of your comments.
    Federal eRulemaking Portal: Go to www.regulations.gov to submit 
your comments electronically. Information on how to use 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``FAQ'' (https://www.regulations.gov/faq).

[[Page 27933]]

    Privacy Note: OSTP's policy is to make all comments received from 
members of the public available for public viewing in their entirety on 
the Federal eRulemaking Portal at www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available. OSTP requests 
that no proprietary information, copyrighted information, or personally 
identifiable information be submitted in response to this RFI.
    Instructions: Response to this RFI is voluntary. Respondents may 
answer as many or as few questions as they wish. Responses containing 
references, studies, research, and other empirical data that are not 
widely published should include copies of or electronic links to the 
referenced materials. Any information obtained from this RFI is 
intended to be used by the government on a non-attribution basis for 
planning and strategy development. OSTP will not respond to individual 
submissions. A response to this RFI will not be viewed as a binding 
commitment to develop or pursue the project or ideas discussed. This 
RFI is not accepting applications for financial assistance or financial 
incentives. All comments, including attachments and other supporting 
materials, will become part of the public record and subject to public 
disclosure. Proprietary information or sensitive personal information, 
such as account numbers or Social Security numbers, or names of other 
individuals, should not be included in the body of your response. 
Respondents interested in submitting anonymous comments should use the 
option on www.regulations.gov/.

FOR FURTHER INFORMATION CONTACT: Alan Mislove, Assistant Director for 
Data and Democracy, [email protected], 202-456-4444.

SUPPLEMENTARY INFORMATION: Background: Employers are increasingly using 
automated systems to monitor, manage, and evaluate their workers--both 
on and off the job. According to a 2022 investigation by the New York 
Times, eight of the ten largest private U.S. employers track the 
productivity metrics of individual workers.\1\ Use of automated 
surveillance and management systems has increased with the spread of 
remote work during the pandemic, and now often extends to workers' 
homes.\2\ Private-sector research suggests that the percentage of large 
employers using automated tools to track their workforce may have 
doubled since the beginning of the pandemic to some 60%.\3\
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    \1\ https://www.yahoo.com/video/bosses-giving-return-office-fight-191121126.html.
    \2\ https://www.shrm.org/hr-today/news/all-things-work/pages/monitoring-remote-workers.aspx.
    \3\ https://www.gartner.com/en/articles/the-right-way-to-monitor-your-employee-productivity.
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    Automated worker surveillance and management systems may track 
workers' location, pace or quality of work, communications (e.g., text, 
chats, emails, social media), interactions with other workers or 
customers, and computer activity. Such surveillance can be accomplished 
through a variety of techniques, ranging from software on workers' 
computers to dedicated electronic devices that workers wear or carry on 
their person. The market for these technologies and systems has greatly 
expanded in recent years, and a number of vendors are now developing 
products to help employers electronically monitor and manage their 
workers in a variety of contexts.
    Examples of applications of automated surveillance and management 
of workers that have been reported in the press include:

 Warehouse workers who are tracked by whether they are actively 
moving products
 Grocery store cashiers who are monitored on the speed of their 
transactions with customers
 Office workers whose keystrokes, chats, emails, and other 
communications are collected and monitored
 Lawyers whose computer cameras track whether their eyes are 
actively focused on the screen
 Call center workers whose calls are monitored by a computer 
that judges the emotional state of customers
 Copywriters whose computers automatically take screenshots of 
their activity to track which applications they are using
 Home healthcare workers whose locations are monitored by an 
app that verifies patient visits
 Nurses whose time on task and location are tracked through 
radio frequency identification (RFID) tags in identification badges
 Delivery or rideshare drivers whose vehicles track their 
location, speed, and driving behavior
 Long-haul truckers whose eye movements are monitored and 
locations tracked
 Fast food workers whose pace of work in preparing meals is 
tracked and reported
 Teachers whose lessons delivered remotely online are recorded 
and analyzed electronically

    These systems may allow employers to more closely monitor worker 
performance; protect public health and safety; make decisions about 
promotion, discipline, or termination; or manage work assignments, 
schedules, and supply chains. At the same time, applications of 
automated surveillance and management systems can also pose risks to 
workers and even violate labor and employment laws.\4\ Emerging 
research suggests that certain applications of these systems may 
undermine the quality of work; workers' rights to a safe and healthy 
workplace; compensation for time worked; labor market competition; and 
workers' ability to organize and work collectively with their coworkers 
to improve working conditions, including through labor unions. Certain 
applications of these systems--when paired with decisions about working 
conditions, promotion, discipline, or termination--may also treat 
otherwise similar workers differently on the basis of their race, 
ethnicity, gender, religion, age, national origin, health or 
disability, or other protected status. Some systems may also violate 
antitrust and privacy laws, for instance, if employers use technologies 
to artificially reduce wages.
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    \4\ See for instance, https://laborcenter.berkeley.edu/wp-content/uploads/2021/11/Data-and-Algorithms-at-Work.pdf, https://cdt.org/insights/report-warning-bossware-may-be-hazardous-to-your-health/, and https://equitablegrowth.org/research-paper/workplace-surveillance-is-becoming-the-new-normal-for-u-s-workers/.
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    Automated worker surveillance and management can also cause and 
exacerbate disabilities and interfere with legal protections for those 
with disabilities. Automated worker surveillance and management systems 
can potentially put workers at risk for physical injury and mental 
health distress that can cause or exacerbate anxiety, depression, 
cognitive disability, and trauma responses; interfere with legally-
protected workplace accommodations that enable individuals with 
disabilities to participate in the workforce; and reveal workers' 
otherwise-undisclosed disabilities to employers.
    In 2022, the White House Office of Science and Technology Policy 
released the Blueprint for an AI Bill of Rights (``Blueprint''), which 
stated that individuals ``should be free from unchecked surveillance.'' 
\5\ The Blueprint noted that continuous surveillance can pose harms to 
workers, using the example of electronic monitoring intended to stymie 
workers'

[[Page 27934]]

efforts to organize a labor union. Consistent with the Blueprint, the 
Office of Science and Technology Policy seeks to further study the use 
of automated surveillance and management systems in the workplace, 
including their prevalence, impacts, and deployment, as well as 
opportunities for Federal agencies to work together with employers and 
workers to ensure that these systems do not undermine workers' rights 
or their safety.
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    \5\ https://www.whitehouse.gov/ostp/ai-bill-of-rights/data-privacy-2/.
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    This focus on automated surveillance and management in the 
workplace is also consistent with the Administration's commitment to 
ensuring that all workers have access to high-quality, well-paying 
jobs, including jobs with opportunities to organize and bargain 
collectively with their employers through labor unions, as articulated 
in the Executive Order 14025 (Worker Organizing and Empowerment) \6\ 
and through a competitive market for their labor, as articulated in 
Executive Order 14036 (Promoting Competition in the American 
Economy).\7\ This initiative advances the Biden-Harris Administration's 
historic commitment to racial equity and support for underserved 
communities, by investigating whether automated surveillance and 
management systems ``contribute to unjustified different treatment or 
impacts,'' as articulated in Executive Order 14091 (Further Advancing 
Racial Equity and Support for Underserved Communities Through the 
Federal Government) as well as the Administration's call for robust 
protections for Americans' privacy.
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    \6\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/04/26/executive-order-on-worker-organizing-and-empowerment/.
    \7\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
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    Request for Comment: This request for information seeks input from 
the public on the prevalence, uses and purposes, and deployment of 
automated worker surveillance and management systems, including impacts 
of these systems on workers' legal rights and lives. It includes 
workers' physical and mental health; privacy, dignity, and autonomy; 
and ability to exercise workplace rights, including rights to 
collective action, pay, reasonable accommodation, health, and safety, 
and freedom from retaliation, discrimination, and harassment. It also 
seeks input on how employers may share data collected through these 
surveillance applications and how worker surveillance may contribute to 
unfair competition between firms.
    This RFI focuses on automated surveillance and management by 
employers that may track workers' locations, pace of work, performance 
or output, compliance with policy or regulations, or social media 
activity; their emails, texts, chats, phone calls, and other 
communications; or other similar measures. Such surveillance may take 
place during or outside of work hours, and on or off the worksite. This 
request for information also covers workers in traditional employment 
relationships (i.e., W-2 employment) as well as other employment 
relationships, such as independent contractors and gig economy workers.
    OSTP is particularly interested in hearing from:
     Workers who have experienced automated surveillance and 
management (including workers of color, low-paid workers, immigrant 
workers, and workers with disabilities);
     Worker organizations (including worker advocacy groups, 
worker centers, labor unions, and workplace legal services providers);
     Civil rights and privacy organizations;
     Employers (including for-profit, non-profit, and 
government employers) that are using automated surveillance and 
management systems or considering using such systems;
     Platforms, crowdsourcing websites, transportation network 
companies, ride-hailing services, and other entities that match workers 
with opportunities to generate income;
     Trade and business associations representing employers;
     Developers and vendors developing or selling automated 
surveillance or management systems;
     Researchers (including researchers using both qualitative 
and quantitative methods to understand the use, prevalence, benefits 
and risks, and impacts of automated surveillance and management systems 
on individuals and society); and
     State, Tribal, local, and territorial governments.
    To assist commenters in developing responses, OSTP has crafted the 
questions below that commenters may answer. Respondents may provide 
information for one or more of the topics below, as desired. However, 
OSTP welcomes members of the public to submit any personal experiences, 
data, information, and research relating to the use and impact of 
automated worker surveillance and management systems. Please do not to 
include personally identifying information in the body of your 
response.
    1. If you are a worker or organization representing workers (such 
as a worker center, union, or legal services provider), please tell us 
about your experiences with automated worker surveillance and 
management systems or the experiences of the workers you interact with, 
including:
    a. The type of work you do (e.g., describe the relevant job, 
employer, and industry);
    b. Whether you are a member of a labor union;
    c. The type of automated surveillance or management you have 
experienced, including the location of the monitoring technology (such 
as an app you had to use or download; a device you had to use, carry, 
or wear; or a camera that monitors you);
    d. Whether the automated surveillance or management was used during 
a labor organizing drive;
    e. Whether and when your employer informed you about their use of 
automated worker surveillance and management systems;
    f. Whether you (or, if relevant, your representative, like a labor 
union) have any input or control over how, where, and over what 
automated surveillance occurs;
    g. Whether you know how the data generated by surveillance is used 
for management or other purposes (including purposes related to 
employment or labor market competition);
    h. Whether you (or, if relevant, your representative, like a labor 
union) have any visibility into the data collected on you or how it is 
used, including whether data on you collected by surveillance can be 
shared with other companies, trade groups, or third parties;
    i. How the use of automated surveillance and management systems has 
changed how you do your job or how your employer treated you at your 
job;
    j. Whether your employer has used information from an automated 
surveillance and management system in support of any discipline against 
you--and if so, what the action was, how and when you were informed, 
and what information was provided to you or your representative (such 
as a labor union);
    k. How automated surveillance and management has affected you--
whether positively or negatively--including any economic, safety, 
physical, mental, and emotional impacts;
    l. How automated surveillance and management systems have affected 
your workplace rights, including rights around collective action, labor

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organizing, collective bargaining, pay, reasonable accommodations, 
health and safety, discrimination, and harassment--or your expectation 
of retaliation when exercising these rights;
    m. How these systems have impacted your non-working hours, personal 
time, or the privacy of other members of your household;
    n. If you are disabled or have a health condition, how automated 
surveillance and management systems have impacted or may impact your 
use of reasonable accommodations; such as assistive technology or 
accessibility features of software or breaks, or affected your ability 
to keep information about your condition private from your employer, 
supervisor, or coworkers;
    o. If you are disabled or have a health condition, how automated 
surveillance and management systems have affected performance reviews 
or other management activities, or concerns about how these systems may 
affect performance reviews or how your management treats you; and
    p. Whether you work for an employer that receives Federal funds 
(for instance, as a Federal contractor).
    2. If you are an employer or organization representing employers, 
please tell us about your experiences implementing or using automated 
worker surveillance and management systems, including:
    a. The type of business you are in, or represent, including your 
industry and roughly how many workers you employ;
    b. Whether any of your employees are represented by a labor union;
    c. The types of automated worker surveillance and management 
systems your business has implemented or is considering implementing;
    d. The purposes for which your business decided to implement 
automated worker surveillance and management systems, such as safety 
and health, productivity, competition, liability or insurance, 
compliance, or resource and worker management;
    e. How your business decided to use specific automated worker 
surveillance and management systems, including decisions not to use 
particular products or types of systems, to limit their scope, and 
relevant training;
    f. In what ways your business uses the information collected 
through automated surveillance and management systems, such as for 
management, human resources, and business operations, including whether 
the information is sold or shared with other businesses or otherwise 
influenced by other businesses' activities;
    g. Any steps your business has taken to solicit or incorporate 
worker input into how automated worker surveillance and management 
systems are adopted, implemented, and used; whether workers may opt out 
of such systems (and any consequences for doing so); and how generated 
data is used or shared with other parties;
    h. Any involvement of third parties (such as vendors) in collecting 
or maintaining information on workers and any control retained by the 
employer;
    i. Any steps you have taken to ensure that the use or sharing of 
automated worker surveillance and management systems does not infringe 
on workers' rights;
    j. How you decide the categories of workers for whom you deploy 
automated worker surveillance and management systems (e.g., managerial 
versus non-managerial workers);
    k. Any policies or protocols adopted to govern the use of automated 
worker surveillance and management systems or the data they produce; 
and Whether your organization receives Federal funds.
    3. If you are a technology developer or vendor, please tell us 
about your experience developing or distributing automated worker 
surveillance and management systems, including:
    a. The purposes for which employers adopt your products and how 
they deploy these products;
    b. How the impact, performance, and efficacy of your products is 
audited and validated by you, employers, and workers;
    c. How you and the users of your products manage data collection, 
storage, and maintenance, including access to data by third parties;
    d. Whether you provide guidance to employers on your products and 
their appropriate use, including guidance on notifying workers about 
the use of technology, and offering opportunities for workers to 
consent to or opt out of data collection;
    e. Whether you engage with employers to help them implement your 
products in ways that protect workers' rights, health, and safety--or 
otherwise take steps to help protect workers who will engage with your 
products; and
    f. Any steps you have taken to ensure that the use of automated 
worker surveillance and management systems does not infringe on 
workers' rights.
    4. Data and research-related questions we are interested in 
include:
    a. What data and evidence exist on the prevalence of automated 
worker surveillance and management systems across different industries, 
occupations, and regions, including changes over time?
    b. What data and evidence exist on the impact of automated worker 
surveillance and management systems on workers, including workers' pay, 
benefits, and employment, physical and mental health, and ability to 
exercise workplace rights?
    c. What data and evidence exist on the impact of automated worker 
surveillance and management systems on labor rights, including workers' 
abilities to form and join unions and bargain collectively with their 
employers?
    d. What data and evidence exist on how the impact of automated 
worker surveillance and management systems differs across groups of 
workers, including based on characteristics such as race, national 
origin, sex, age, disability, religion, or health status?
    e. What data or evidence exists on whether automated worker 
surveillance and management systems are being used for discriminatory 
purposes or resulting in discrimination?
    f. What data and evidence exist on whether automated workers 
surveillance and management systems impact employers' ability to 
recruit and retain workers?
    g. What data or evidence exists on how the provision of reasonable 
accommodations is accounted for in the design and operation of 
automated worker surveillance and management systems?
    h. What data and evidence exist on why employers decide to adopt 
automated worker surveillance and management systems?
    i. Are there any existing or new systems that aggregate worker 
surveillance data across multiple employers?
    j. What are new or emergent automated worker surveillance and 
management systems--or new and emergent uses of existing technologies--
that Federal agencies should be tracking?
    k. Where might further research, including by the Federal 
government, be helpful in understanding the prevalence and impact of 
automated worker surveillance and management systems?
    5. Last, we are especially interested in the following questions 
about policies, practices, or standards that could protect workers:
    a. What guidelines, standards, or best practices might inform the 
design of automated worker surveillance and management systems to 
protect workers' rights?
    b. Are there policy approaches to regulating automated worker

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surveillance and management systems from State, Tribal, territorial, or 
local governments or other countries that Federal agencies could learn 
from?
    c. What policies or actions should Federal agencies consider to 
protect workers' rights and wellbeing as automated worker surveillance 
and management systems are developed and deployed, including through 
regulations, enforcement, contracting, and grantmaking?

    Dated: April 28, 2023.
Stacy Murphy,
Deputy Chief Operations Officer/Security Officer.
[FR Doc. 2023-09353 Filed 5-2-23; 8:45 am]
BILLING CODE 3270-F1-P