Association Weighs In on Automated Worker Surveillance in Comments to White House

HR Policy Association submitted comments, with member input, to the White House Office of Science and Technology Policy (OSTP) in response to its request for information to learn more about the automated tools used by employers to “surveil, monitor, evaluate, and manage” workers.    

The OSTP Request focuses on tools which “pose risks to workers and may even violate labor and employment laws.” In our comments, the Association noted that our members are committed to reasonable and ethical use of AI and that AI tools can boost workforce diversity and build a more inclusive workplace. Our comments underscored that employers are not seeking to create an environment where every employee action is tracked and worker privacy is not valued. We The comments also addressed the business case for using automated technology such as ensuring a safe workplace, mitigating risks to workers and the business, and assisting in compliance.

To inform our comments to OSTP, the Association conducted a member survey in June. Most respondents indicated that they do not use data from monitoring tools to inform any employment decisions. Instead, the information is used to provide constructive feedback to employees regarding general performance. Furthermore, our survey respondents indicated that they provide notice to employees who are being monitored using automated tools, contrary to what OSTP’s request for comment purports.

As with our previous comments to the Commerce Department’s National Telecommunications and Information Administration (NTIA), we urged policymakers to consider the rapid growth of AI, including automation, and advised against rushing towards new and static rules or guidance. Any new regulation will have to keep pace with the evolution of AI so as not to become stale or obsolete over time. Finally, the Association encouraged policymakers to align any new guidelines or standards for AI with existing government policy.

Outlook: Absent legislative and formal regulation this year, anticipate more agency attention to this issue. The leaders of the DOJ, EEOC, Consumer Financial Protection Bureau, and FTC issued a joint statement saying that “[e]xisting legal authorities apply to the use of automated systems and innovative new technologies just as they apply to other practices.” In addition, last year, NLRB General Counsel Abruzzo issued a memorandum suggesting she will seek to bring complaints against employers using electronic monitoring and automated management tools to “tee up” a case for Board consideration.