Employee Data Privacy and Consent in Workplace Surveillance Systems

Abstract

Employee surveillance has evolved from an occasional tool of managerial control to an extensive surveillance apparatus in today’s employment relation. The contemporary employers monitor keystrokes, computer usage, locations, communication channels, physiological responses, and emotional displays, and thus collect information that is highly personal, constant, and often gathered beyond the literal confines of the workplace. The present paper considers the conflict between data privacy of employees and mechanisms of consent typically used to justify such monitoring. It is suggested that consent, as it is designed in both the law and the management practices today, is inherently incapable of fulfilling its legitimizing role in the employment relation due to the asymmetry of powers between the employer and the employee. Following the assessment of the technological landscape of surveillance systems at work, the paper examines the responses in legal doctrine to workplace surveillance from the European Union and the United States, which include GDPR, the EU Artificial Intelligence Act, the European Convention on Human Rights, a collection of US state monitoring laws, and collective bargaining on algorithmic governance. Finally, the paper examines empirical research on the effects of surveillance on trust, stress, satisfaction, and performance. In conclusion, the paper suggests a governance architecture that does away with consent as a key mechanism of legitimacy and substitutes it with necessity, proportionality, transparency, workers’ voice, and accountability.