[Federal Register Volume 88, Number 117 (Tuesday, June 20, 2023)]
[Notices]
[Pages 39870-39873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12995]
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OFFICE OF SCIENCE AND TECHNOLOGY POLICY
Request for Information: Extension of Comment Deadline 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 29, 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).
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
[[Page 39871]]
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' 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.
[[Page 39872]]
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
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;
[[Page 39873]]
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
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: June 13, 2023.
Stacy Murphy,
Deputy Chief Operations Officer/Security Officer.
[FR Doc. 2023-12995 Filed 6-16-23; 8:45 am]
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