Algorithms at Work: Productivity Monitoring Applications and Wearable Technology as the New Data-Centric Research Agenda for Employment and Labor Law

Recent work technology advancements such as productivity monitoring software applications and wearable technology have given rise to new organizational behavior regarding the management of employees and also prompt new legal questions regarding the protection of workers’ privacy rights. In this Article, I argue that the proliferation of productivity monitoring applications and wearable technologies will lead to new legal controversies for employment and labor law. In Part I, I argue that productivity monitoring applications will prompt a reckoning of the balance between the employer’s pecuniary interests in monitoring productivity and the employees’ privacy interests. Ironically, such applications may also be both sword and shield in regard to preventing or creating hostile work environments. In Part II of this Article, I note the legal issues raised by the adoption of wearable technology in the workplace—notably, privacy concerns, the potential for wearable tech to be used for unlawful employment discrimination, and worker safety and workers’ compensation issues. Finally, in Part III, I chart a future research agenda for privacy law scholars, particularly in defining “a reasonable expectation of privacy” for employees and in deciding legal questions over employee data collection and use.