“If you make any mistakes, you can just push this button,” the employee training me on the cash register said. Almost immediately, our manager interjected, “You know we track that, right?” The employee’s eyes grew wide in distress.

From Amazon warehouse associates to white-collar tech employees, workers in nearly every sector are now subject to digital surveillance by their employers. While this seemingly “limitless” surveillance impacts people across the economic ladder, its harms are compounded for already marginalized workers.

A report by the Institute for Public Policy Research finds non-unionized women and Black women are 52% more likely to experience worker surveillance.

This means employees in the retail industry are especially at risk. According to the US Census Bureau, women, Black, and Latinx workers are overrepresented in retail, and just 5% of the sector is unionized.

In my recently-released book, Worn Out: How Retailers Surveil and Exploit Workers in the Digital Age and How Workers Are Fighting Back, I explore worker surveillance in the fast-fashion retail industry, which includes but is not limited to Zara, H&M, and Forever 21. To do this, I worked undercover at two fast-fashion retailers, interviewed fast-fashion retail workers around the country, attended retail industry conferences, and volunteered with a retail workers’ center.

I learned this sector relies on a vast array of digital technologies to produce, circulate, and sell more trendy, cheap clothing faster than ever. The impact on store associates and other frontline workers is profound. Automated scheduling software creates unpredictable part-time schedules, daily tasks have intensified, and employee behavior is tracked in ways both visible (like biometric time-clocks that require staff to clock-in and out with their fingerprints) and invisible (like point-of-sale analytic systems that claim to identify “high risk” stores and cashiers). One associate I interviewed aptly remarked that these systems and practices of surveillance create “psychic noise.” While bolstering retailers’ bottom lines, these tools make the work and lives of frontline staff even more stressful. 

The Stop Spying Bosses Act

Legislation proposed in early February by Senators Bob Casey (D-PA), Cory Booker (D-NJ) and Brian Schatz (D-HI) aims to put the brakes on worker surveillance. The one-pager for this proposed legislation, called the “Stop Spying Bosses Act” says, “data collection, workplace surveillance, and automated decision systems imperil workers’ autonomy, dignity, and, in some cases, their health and safety.”

This bill is significant given that few restrictions currently exist to limit worker monitoring even as surveillance technology capabilities are increasing at unprecedented rates.

The Stop Spying Bosses Act would:

●      “require any employer collecting data on employees or applicants to disclose such information in a timely and public manner;

●      prohibit employers from collecting sensitive data on individuals (i.e., off-duty data collection, data collection that interferes with organizing, etc.);

●      create rules around the usage of automated decision systems to empower workers in employment decisions; and

●      establish the Privacy and Technology Division at the Department of Labor to enforce and regulate workplace surveillance as novel technologies evolve and grow.”

Stop Spying Bosses Doesn’t Go Far Enough

While the Stop Spying Bosses Act is a good start, based on my research and that of other scholars, activists, and organizers, this bill may not go far enough in adequately addressing the contemporary realities of worker surveillance.

First, by focusing squarely on how employers surveil and monitor employees, this proposed legislation implies a linear, one-way model of surveillance in which one party surveils another. But this is not how modern surveillance systems work. In reality, they are much more complicated, and surveillance of one group of people can directly and indirectly impact others. Solon Barocas and Karen Levy call this phenomenon “refractive surveillance.”  In the retail sector, for instance, technologies built to track customer movements throughout stores required new ways to distinguish customers from employees, thus leading to more digital scrutiny of workers’ movements as well.

Second, by framing the problem as one of bosses spying on employees, the Stop Spying Bosses Act avoids addressing the vast array of third-party tools and platforms that retailers use to manage and monitor their employees. When I worked undercover as a fast fashion retail employee, I regularly interacted with third-party scheduling software, biometric time clocks, surveillance cameras, and cashier tracking systems. And these were just the ones I was aware of. As part of my research, I also attended a retail “loss prevention” conference where tech companies that made these kinds of tools attempted to promote and sell them to retailers. When I asked one representative of a facial recognition software company about the ethical implications of their product, he told me his company simply makes the products, but they can’t control what retailers do with it. That logic can go both ways: even if legislation limits the data retailers directly collect about employees, retailers may attempt to sidestep these regulations with the help of third-party software.

Third, the Stop Spying Bosses Act does not address the many ways that worker data can be shared beyond one’s employer. We should be especially concerned about how worker data can potentially be shared across companies or with law enforcement, ICE, and other state and federal agencies.

At the aforementioned “loss prevention” conference I attended, one company advertised a database that retailers could join to share information about front-line employees accused of theft or other fraudulent behavior. Retailers at the conference were also encouraged to mingle with law enforcement representatives from around the country at the conference “fusion center.” Here, retailers, tech companies, and law enforcement converged around the shared project of protecting private property. Such data-sharing and relationship-building can disproportionately impact marginalized workers by potentially increasing points of contact with law enforcement and further monitoring already over-policed communities.

Stopping Workplace Surveillance

To more adequately confront worker surveillance, the Stop Spying Bosses Bill should:

●      Consider the many ways companies collect information about employees, customers, or other members of the public and consider how data collection about one party can impact another. This may require more expansive regulations of company data practices, such as supporting fair scheduling (as New York and Los Angeles have done) and enacting prohibitions on facial recognition.

●      Ensure that any proposed legislation addresses employee data collected by third-party monitoring and surveillance technology companies.

●      Place limits on data sharing between employers and law enforcement, ICE, or other government agencies, and require employers to disclose when employee data may be shared with such institutions.

Worker surveillance is not a homogenous phenomenon, and adequate policy will need to go beyond one-size-fits-all solutions. Given that marginalized workers (women, people of color, and un-unionized) are more likely to experience surveillance, policymakers should take their struggles and demands seriously.

Some of the most inspiring initiatives to confront digital surveillance occur not on the Senate floor, but among workers and labor organizations.

No matter what happens with the Stop Spying Bosses legislation, its workers, not lawmakers, who I will be counting on to make our workplaces safer.