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Data collection guidelines and prohibitions

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

Other workplace technology provisions

6.1.a Data collection guidelines and prohibitions

Union agreements often include safeguards that limit the ways employers can collect data directly from workers. These provisions are designed to protect employee privacy, prevent coercive or invasive data-gathering practices, and ensure union oversight of employer-initiated studies, testing, or surveys. Many of these protections originated before the rise of algorithmic systems but remain essential as digital tools expand the scope of data collected for evaluation, surveillance, or management. This section includes the following categories:

Guidelines and restrictions on psychological and personality tests

Some union contracts prohibit or tightly regulate psychological testing to protect employee privacy, ensure voluntariness, and prevent misuse in employment decisions.

Examples:

  • “The Employer will not require psychological testing as a part of any annual recurring … physical examination.” (PAACE-OPM25)
  • “No psychological or personality tests will be given to any player after he signs his first contract with a … Club. This restriction does not apply to the League mandate regarding neuropsychological testing. A Free Agent may agree to take a psychological or personality test if so requested by a Club interested in his services. A player is entitled to review the results of his psychological or personality tests upon request.” (NFLPA-PCBA5)
  • “Mass medical and/or psychological study participation by bargaining unit employees shall be on a voluntary basis. All individual medical and/or psychological information acquired by an outside study group and their associates shall be kept strictly confidential. This information shall not be disclosed to the [Employer] with identification of participating individuals. Publication of data resulting from a … study shall not identify individuals and shall be limited to group statistics. This Section does not apply to time and motion studies. Employees shall not, as a condition of employment, be required to participate in any studies. Before entering into a study, the Union and the employees shall receive a document stipulating the conditions under which the study will be conducted and a statement of intent and practice by which data will be held in confidence. The Union shall receive a copy of the study concurrently with its submission to the [Employer]. The [Employer] shall refrain from any efforts to relate data to any individual participant in such a study. Participating [Employees] or their designated Union representative shall be afforded an opportunity to review and comment, in advance, on any publication based on or derived from such … studies. Any participation in studies shall not adversely affect any compensation, benefits, or travel and per diem to which an employee is otherwise entitled. All examinations shall be conducted on the employee’s duty time. The Union may designate a representative to serve as its liaison between a study group and/or the [Employer]. The [Employer] shall not conduct any study that involves the time and motion measurement of employees or their job performance without notifying and affording an opportunity for participation by the Union.” (NATCA-OPM100)
  • “Employees cannot be ordered to undergo psychological testing unless the Sheriff has reasonable suspicion to believe that the employee is impaired and cannot perform the functions of his job duties. At the time an employee is ordered to submit to psychological testing, the County shall provide the employee with a written notice of the order setting forth all the objective facts and reasonable inferences drawn from those facts which have formed the basis of the order to test. The employee shall retain all rights as afforded to him under the provisions of the ILCS dealing with Mental Health.” (ILFOP-OLMS38)

Guidelines for survey and study administration

Agreements may require employers to notify unions in advance of conducting surveys or studies, and to uphold standards of voluntary participation, confidentiality, and joint oversight.

Examples:

  • “If Management wishes to issue a survey or questionnaire regarding working conditions to employees, the Union will be notified in advance. Nothing in this section precludes the Union from the right to bargain over conditions of employment under 5 U.S.C. Chapter 71. Participation in surveys will be voluntary, unless the parties agree to require participation. Employees will be informed if their responses will not be confidential and/or their anonymity will not be protected, unless the parties agree otherwise.” (AFGE-OLMS77)
  • “The Union will be notified in advance of conducting local survey/polls being administered to employees.” (AFGE-OPM96)
  • “The [Employer] recognizes that it is in its interest to have Union support for surveys of bargaining unit employees. The [Employer] shall not conduct surveys without providing the Union an opportunity to review and comment on the questions and related issues. The Union will be provided an advance copy of any survey prior to distribution. Surveys shall be conducted on the employee’s duty time. The Union shall be provided with the geographical/organizational distribution of surveys that are distributed on a random sample basis. The Union shall be afforded an opportunity to review and comment in advance on any publication based on or derived from survey results. If feasible, the Union shall be provided a copy of survey results at the same time they are distributed to the corresponding level of the [Employer]. Participation in surveys shall be voluntary. To assure the anonymity of survey comments, employees shall have reasonable access to a typewriter/computer, if available. The Union representative shall participate in all debriefing and action planning sessions involving employees including, but not limited to, the Survey Feedback Action (SFA).” (NATCA-OPM100)
  • “The parties recognize the importance of conducting surveys and/or data collection initiatives in order to ascertain employee morale and workplace concerns. Management will provide the Union with an advance copy of all [Employer] surveys and other non-[Employer] surveys on personnel practices, policies and working conditions, if Management receives them in advance. Results, analyses, and recommendations produced by these surveys will be shared with the Union before it is communicated to Bargaining Unit employees. Jointly developed surveys shall include a statement of the Union’s concurrence.” (AFGE-OPM39)
  • “The Employer agrees that: 1) Before a time and motion study is performed, the Employer will notify the Union two (2) weeks prior to the commencement of the study and meet promptly thereafter to provide information/details about the study to the designated Union representative; and 2) the Employer will meet with the Union representative to discuss the findings of the study prior to making any operational changes.” (LJEBLV-UNITEHERE-OLMS14)

Prohibitions on lie detector or polygraph tests

Many contracts include explicit bans on polygraph testing, reflecting union concerns about coercion, due process, and the reliability of such tools in workplace investigations.

Examples:

  • “No employee shall be required or requested by the Employer to take a lie detector test. The parties agree that applicants for positions other than those for which individual bondable status is required [in accordance with this agreement] shall not be given lie detector tests.” (LJEBLV-UNITEHERE-OLMS13)
  • “No applicant for employment and no employee will be required to take any form of a lie detector test as a condition of employment.” (IBT-PCBA7)
  • “The Employer agrees that it will not require any employee or prospective employee to take a polygraph (lie detector) test as a condition of employment or continued employment.” (UFCW-PCBA57)
  • “No employee or officer covered by this Agreement shall be required to take or be subjected to any polygraph or similar tests as a condition of continued employment.” (FOP-OLMS22)
  • “No employee shall be required to take a polygraph test as a condition of retaining employment nor shall any employee be disciplined for refusing to take the polygraph test. If any employee voluntarily agrees to take a polygraph test, the employee shall be given a copy of any questions upon which a judgment could be made. The parties understand that no employee, under ordinary circumstances, shall be disciplined for refusing to take a polygraph. However, the Board and the Union both understand that serious infractions involving allegations of possible fraud, theft, burglary and other serious felonious acts indicate the need for extraordinary steps in the resolution of these problems. The parties, therefore, agree that in such cases the Board may require polygraph testing for the appropriate employee(s). It is understood that failure to take the test by any employee under such extraordinary circumstances, shall subject the employee to discipline, up to and including discharge. Any employee may voluntarily agree to take a polygraph test under the extraordinary circumstances outlined above. In all cases where a polygraph test is to be administered, the subject matter of the interrogation in the test shall be communicated to the employee in advance of the test. A union representative may accompany the employee to the location of the test. The polygraph examiner may have absolute authority to determine which persons may be present in the room where the test is being administered. If the results of such a polygraph test indicate to the expert examiner who administered the test that such employee so tested has given answers which raise serious question as to the employee’s truthfulness and further indicate that the employee committed the acts in question, the employee may be subject to discipline up to and including discharge.” (SEIU-OLMS48)

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6.1.b Data privacy and security