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Conditions for use of electronic monitoring systems and data

Negotiating Tech: An Inventory of U.S. Union Contract Provisions for the Digital Age

Governance of workplace technology applications

4.1.e Conditions for use of electronic monitoring systems and data

This section focuses on the operational conditions under which electronic monitoring systems may be deployed or used. Whereas Section 4.1.c addressed how monitoring data can or cannot be used, this section emphasizes the rules governing the systems themselves—their deployment, functionality, employee participation, and compliance with law and policy. These provisions aim to ensure transparency, fairness, and procedural safeguards in the operation of electronic monitoring technologies.

Key areas include:

These provisions affirm that electronic monitoring must conform to governing laws and privacy regulations. They ensure employer obligations are grounded in statutory requirements and help protect workers from unlawful data practices.

Examples:

  • “The [Employer] shall operate any electronic monitoring in accordance with law, rule, and/or regulation.” (NTEU-OPM22)
  • “All telephone and recorded communication monitoring shall be conducted in accordance with applicable provisions of the Privacy Act, 18 U.S.C. 2511, the Wiretap Act, the Electronic Communications Privacy Act, and this Agreement.” (AFGE-OPM3)
  • The Employer shall comply with all provisions of the Privacy Act of 1974, as amended, and any other relevant federal regulations in the management of all systems of records generated by electronic monitoring devices. (NTEU-OPM23)

Some technologies, such as wearables or in-cab microphones, require explicit consent from employees. These clauses define when participation is optional and prohibit retaliation or pressure when employees decline to participate.

Examples:

  • “No electronic recordings may be made without mutual consent except for Inspector General Investigations (OIG), other law enforcement investigations, or EEO investigations.” (AFGE-OPM93)
  • “A Team may request a player to use in practice (or otherwise not in a game) on a voluntary basis a Wearable that has been approved by the Committee. A player may decline to use (or discontinue use of) a Wearable at any time.” (NBPA-OLMS1)
  • “Microphone devices will be affixed on Players at a time and in a manner that will not intrude on the Player’s preparation for or participation in a game. A Player may ask that a microphone be removed at any time for any reason, and such request will be honored. Additionally, broadcast partners will consider Players’ preference regarding the timing (i.e., which inning or half innings) that two-way microphone content will be provided.” (MLBPA-PCBA6) 
  • “Any use of a wearable technology by a Player (including use on-field, offfield and/or away from the ballpark) shall be wholly voluntary and Clubs must refrain from making any suggestion that the use of such technology is anything less than wholly voluntary. There will be no consequences to a Player if he declines to use any wearable technology, or if he discontinues his use of such a technology.” (MLBPA-PCBA6)
  • “Player participation in any Sleep Study [“through the use of wearable sleep trackers and any future iterations thereof”] is strictly voluntary. Clubs may not require player participation in a Sleep Study. Prior to conducting any Sleep Study, the Club shall inform each player in writing that such participation is voluntary.” (NFLPA-PCBA5)

Safety, validation, and system design standards

These provisions require that technologies meet safety benchmarks and undergo validation testing. They may also address system infrastructure and cybersecurity safeguards to protect both physical and digital risks.

Examples:

  • “The EMPLOYER shall assure that the area around the Automated Access Control System (AACS) badge reader will be properly lighted 24 hours a day and that the badge reader will have weather protection. The EMPLOYER shall maintain a working telephone in unmanned AACS badge reader areas, which may constitute an entrapment hazard and shall assure timely response to an emergency relating to an employee being stuck in a passage controlled by an AACS badge reader.” (IFPTE-OPM109)
  • “The Wearables Committee shall be responsible for: (i) reviewing all requests … to approve a wearable device for use by players, with the standard being whether the wearable device would be potentially harmful to anyone (including the player) if used as intended, and whether the wearable’s functionality has been validated; and (ii) setting cybersecurity standards for the storage of data collected from Wearables.… No Team may request a player to use any Wearable unless such device is one of the devices currently in use as set forth in [this agreement] or the device and the Team’s cybersecurity standards have been approved by the Committee pursuant to [this agreement].… Use of any wearable that is not among the Approved Wearables is prohibited. In addition: (i) the only metric categories and/or system variables that Teams can use from Approved Wearables are those that were designated as “Pass” in the wearables validation reports provided to the parties by their jointly retained experts; and (ii) Teams must follow the safety directions of the jointly retained experts as provided to Teams in the Wearable Device Validation Reports. With respect to raw or unprocessed data exports or APIs from Approved Wearables (“Raw Data”), so long as such Raw Data are not provided through a dashboard or other visual within an Approved Wearable’s software platform, the foregoing shall not prohibit Teams from (i) using Raw Data so long as the Raw Data is used in metric categories and/or system variables that were designated as “Pass” in the Wearable Device Validation Reports, or (ii) receiving Raw Data. If upon evaluation by the Committee, any of the foregoing devices are reviewed and are not approved by the Committee, Teams will be required to discontinue the use of such Wearables.” (NBPA-OLMS1)
  • “Employees will be provided information on the Standard Operating Procedures (SOPs) of the [Satellite Emergency Notification Devices] SEND units. These SOPs include a description of the tools capabilities and limitations.” (NFFE-OPM19)

Fair and consistent application of electronic monitoring

These provisions ensure monitoring practices are applied uniformly and not used in a discriminatory or arbitrary fashion. Some clauses explicitly state that remote workers or certain roles will not be subject to enhanced surveillance.

Examples:

  • “For all employees subject to such monitoring, monitoring frequency and assessment criteria will be consistently and equitably applied.” (AFGE-OPM3)
  • “An employee will not be subject to enhanced electronic tracking or surveillance solely because they are teleworking.” (NTEU-OPM24)
  • “The [Employer] shall apply its security standards and procedures uniformly throughout the bargaining unit(s).” (NATCA-OPM100)
  • “It is the purpose of this policy to provide general guidelines for employees utilizing the automatic vehicle location (AVL) system. This policy applies to all employees utilizing the AVL system.” (IPOA-OLMS41)
  • “The provisions of this article shall apply to the application of the technology that may be used to administer, track, and/or measure the work of … bargaining unit employees. The application of such technology is governed by established policy of the Department as contained in the Department’s notification to the affected employees and the Union … such technology shall be applied in a manner that ensures validity, reliability, and attainability by most similarly situated employees. The application of the technology will be fair, equitable, consistent, and take into account matters beyond the control of the employee. Where the selection of certain work of an employee is to be random, the Department will provide the employee and the Union with the methodology that was used to assure randomness.” (AFGE-OPM125)

Accountability, grievances, and enforcement

This set of clauses gives employees the right to challenge inappropriate use of monitoring technologies. They establish grievance processes, dispute resolution options, and, in some cases, corrective measures to address improper application.

Examples:

  • “The application of the technology [used to administer, track, and/or measure work], will be evaluated annually by the parties to identify systemic problems and positive outcomes associated with it (in relation to its stated purpose, unintended effects on work product, and impact on employees’ conditions of employment). Recommendations for improvement of the technology and/or its application may be made by the Union at any time. The recommendations should address employees’ positive and/or negative experiences, and will be addressed by the Department whether they are adopted or not.” (AFGE-OPM125)
  • “Complaints/issues regarding the application of the monitoring process are eligible for resolution under [the] Negotiated Grievance Procedure.” (AFGE-OPM3)
  • “The EMPLOYER shall process written employee claims for compensation for time an employee is retained in or kept out of areas controlled by Automated Access Control System (AACS) as a result of security or other drills, power outages, or inoperable AACS equipment. Such claims must be submitted in writing to an employee’s immediate supervisor or designee and will include all pertinent facts. The EMPLOYER shall provide prompt approval or disapproval of the claim. Disapproval may be grieved through the Negotiated Grievance Procedure. Employees whose access is blocked by inoperable equipment are expected to make other reasonable efforts to gain proper entry to their work area, using methods such as contacting nearby security personnel or contacting his/her supervisor or coworker.” (IFPTE-OPM109)
  • Should a Club violate this agreement regarding the use of sensors in practices, they will be subject to the following disciplinary procedures: Parties can file complaints about violations, which will be investigated by designated representatives. If the Parties cannot agree on a resolution, an impartial arbitrator will decide whether a violation occurred and any appropriate disciplinary action. Penalties for violations range from fines and reprimands to more severe measures, depending on the severity of the violation and any aggravating factors. Fines collected from violations will be used to fund research programs. (NFLPA-PCBA5)
  • “If an employee believes that the State’s use of current or future technology is being used for the purpose of harassment the employee may grieve such action under Article 6 [Grievance, Arbitration, and AWOL Procedures].” (SEIU-PCBA84)
  • “At any time an employee disagrees with a record of their work that was obtained through or by technology [used to administer, track, and/or measure work], the employee may seek corrective action in accordance with [the] Grievance Procedure.” (AFGE-OPM125)
  • “Spying on co-workers or employees will not be tolerated. Unauthorized use of the camera or personal camera or other recording device, as prohibited by law, will be cause for disciplinary action, up to and including discharge.” (SEIU-OLMS48)

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4.2 Human resources and workforce management technologies