Report – Warning: Bossware May Be Hazardous to Your Health

Executive Summary

The health and safety risks of intrusive worker surveillance

Employers are increasingly deploying technologies (bossware) that allow both continuous surveillance of workers’ activities and automation of the task of supervising them. Enabled by the limited privacy protections that American law affords employees, and the wide latitude that American law gives companies to dictate workers’ on-the-job activities, bossware allows companies to monitor workers’ physical movements and pace of work in unprecedented detail. Employers feed the data collected by sensors and activity tracking systems into algorithmic management platforms that automate some or all of the tasks traditionally employed by human managers, including assessing workers’ productivity and performance and making disciplinary decisions.

Increasingly, companies are using bossware to enforce a faster pace of work and crack down on breaks and other forms of employee downtime. This report focuses on how bossware can harm workers’ health and safety. In particular, it emphasizes how bossware can:

• Discourage and even penalize lawful, health-enhancing employee conduct, including taking breaks to rest when needed to avoid fatigue or to use toilet facilities.
• Enforce a faster work pace and reduce downtime, which increases the risk of physical injuries, particularly those stemming from repetitive motion.
• Increase risk of psychological harm and mental health problems for workers —  particularly due to the effects of job strain, which occurs when workers face high job demands but have little control over their work.

Existing laws provide limited protection

Federal law provides some potential avenues for workers, particularly those with disabilities, to challenge the threats to their health and safety associated with bossware.

• The Occupational Safety and Health Act (OSH Act) requires employers to maintain a safe and healthful workplace, both in general and through specific standards that the Occupational Safety and Health Administration (OSHA) issues. For example, employers may violate the OSH Act if they prevent workers from using the restroom or penalize them for doing so.
• The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate disabled workers and avoid adopting practices and standards that have the effect of discriminating against them. The ADA provides robust protections to disabled workers due to employers’ affirmative obligation to consider the impact of workplace standards on people with disabilities and to provide reasonable accommodations where necessary. 
• Federal wage and hour law also prohibits a feature of some bossware platforms —  automatically docking workers’ pay for leaving their workstation or for deactivating bossware features.

Action is needed to fully safeguard workers

Existing federal statutes and regulations do not adequately protect workers’ health and safety. Current laws were not designed for a world where employers use technology to continuously monitor employees, impose a grueling work pace, and effectively eliminate workers’ discretion to take breaks or determine when and how they perform their assigned tasks during the workday. Additional legislation and regulation will be needed to fully protect workers’ well-being, and workers need to better understand their rights under current law.

Recommendations for Policymakers & Enforcement Agencies

• To reduce the incidence of fatigue-related injuries and repetitive motion injuries stemming from employers’ use of bossware, OSHA should issue standards regarding rest breaks, work pace, and other factors that affect the frequency and severity of such injuries, and the use of technologies in a manner that increases the risk of such injuries. With congressional authorization as needed, OSHA should also issue general ergonomics standards to firmly establish employers’ obligation to avoid technologies and practices that contribute to repetitive motion injuries.
• OSHA should protect workers from the effects of job strain by issuing standards regulating employer practices, such as the use of bossware, that tend to generate or exacerbate job strain.
• OSHA should begin enforcing its standards in home offices where employers use bossware to monitor and control the activities of their workers.
• To ensure that new standards and guidance are optimally targeted, the National Institute for Occupational Safety and Health (NIOSH) should conduct additional research to determine the impact that employers’ use of bossware has on repetitive motion injuries, job strain, and other threats to workers’ physical and mental health.
• The Equal Employment Opportunity Commission (EEOC) should issue guidance clarifying that employers cannot use bossware to establish or enforce standards that inherently disadvantage disabled workers.

Recommendations for Workers & Advocates

• Workers’ advocates should ensure that workers understand their rights under applicable laws and encourage them to document and report uses of bossware that threaten their well-being.
• Disabled workers should inform their employers of any limitations that require them to take breaks, have a less onerous pace of work, or be provided with another form of reasonable accommodation.
• Workers should consult with an attorney or contact OSHA whenever employers’ algorithmically-tracked pace-of-work requirements deprive workers of a reasonable opportunity to use restroom facilities whenever they need to do so.
• Workers who experience injury or illness as a result of increased work pace requirements, or other effects of new workplace technologies and practices, should exercise their rights by filing a worker’s compensation claim and noting any limitations on physical activity upon their return.
• To provide a platform for workers who fear retaliation to report harmful new technologies and practices, workers’ advocates should establish an independent system that allows workers to confidentially report health and safety concerns. The system should also allow workers to provide documentation of the potential threats to workplace health and safety, and about employers’ technologies and practices that generate those threats.

Recommendations for Employers

• Employers should be mindful of the legal and ethical risks associated with bossware and refrain from dangerous or exploitative uses of these emerging workplace technologies. Particularly, they should consider whether their task management systems and other productivity tools enforce a dangerously high pace of work, or force workers to perform in a way that causes injury or removes workers’ ability to use the restroom.
• Employers must avoid deploying systems that dock workers’ pay based on algorithmically-monitored downtime or time spent off-task.
• Employers cannot deploy or use monitoring or surveillance technologies in a manner that discourages or prevents workers from using the restroom when they need to.
• Implementing algorithmic management systems does not relieve employers of the obligation to engage in an interactive process with disabled workers to determine what accommodations they may need to perform the essential functions of a job.
• Employers should be aware that they have a legal obligation to accommodate the needs of disabled workers, such as providing restroom breaks or short recovery times, unless doing so would pose an undue hardship to the employer. 
• Employers cannot implement systems that will directly or indirectly penalize disabled workers for needing reasonable accommodation to perform essential job functions, or for needing additional time or other accommodations to complete their assigned tasks.

These recommended steps would complement existing, broader-based efforts to strengthen worker privacy protection and target exploitative workplace practices, such as the Worker Privacy Act proposed by the Georgetown Law Center on Privacy & Technology. By providing a means to challenge exploitative uses of bossware without the need for new legislation, stronger enforcement and implementation of existing healthy and safety laws would help shield workers from some of the most harmful effects of bossware while they wait for legislatures to enact more comprehensive protections.

Read the full report here.

Read the plain language report here.