Negotiating Workers’ Rights at the Frontier of Digital Workplace Technologies in 2023

Workers and their unions took center stage in 2023 by negotiating landmark agreements that address emerging workplace technologies. Alongside establishing fundamental rights regarding the adoption of new technologies, unions negotiated protective measures for workers, provisions ensuring workers share in the benefits of these advancements, and even reined in certain technological applications. On a broader level, these agreements set a precedent for workplace technology governance, offering concrete examples for ongoing policy deliberations. Here’s a closer look at some of the major technology bargaining agreements reached this year.

Writers Guild of America West (WGA)

When OpenAI launched ChatGPT in November 2022, writers in the entertainment industry were already grappling with an “existential crisis” due to the rise of streaming services, which have changed TV production and have led to lower pay and less stable work for writers. Writers face challenges in negotiating fair pay in part due to streaming services’ lack of transparency on viewership data.

But the emergence of generative AI systems introduced an entirely new threat to writers’ livelihoods. Media outlets were experimenting with using AI to generate articles, and it started to become clear that these systems were capable of generating scripts and other creative content.

Writers started to worry that production companies could marginalize writers’ contribution for work drafted in part by AI, which would cut into writers’ compensation and residuals. Moreover, as the Authors Guild (representing book authors) described, companies could potentially use generative AI systems to “regurgitate” new works based on writers’ previous written works, pitting AI against human writers for their jobs. So WGA set out to negotiate protective guardrails on AI.

After 148 days on strike, WGA reached a tentative agreement with the Alliance of Motion Picture and Television Producers (AMPTP). The contract, ratified in October 2023, includes some groundbreaking provisions governing technologies:

• Data transparency: Streaming companies must provide WGA data on the total number of hours streamed for in-house high-budget productions.
• Right to know: Companies must disclose to writers if any materials they are given have been generated by AI.
• Authorship, professional status, and compensation: Writers must receive credit and compensation for literary material regardless of whether or not AI generated the first draft or source material given to the writer.
• Job security: Companies cannot use AI to write or rewrite literary material in a manner that replaces WGA member writers.
• Creative discretion and autonomy: Writers can choose to use AI when writing (within company guidelines and consent), but companies cannot require them to do so.
• Right to seek recourse: The WGA reserves the right to challenge companies that use writers’ material to train AI.

Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA)

AI-generated content is not a new issue for SAG-AFTRA members. For years, the union has been fighting against the proliferation of deepfakes, such as the recent example of a fraudulent advertisement using Tom Hanks’ likeness. In the employment context, studios regularly create digital replicas of actors to alter an actor’s appearance, use as stunt doubles or video game characters, or even extend an actor’s performance after their death, as in the case of Carrie Fisher in Star Wars.

Despite the potential benefits of these technologies, actors increasingly fear studios exploiting their digital likenesses without their full consent or control. The anxieties of actors materialized when studios proposed a one-time payment to background actors for capturing their likenesses, enabling studios unrestricted use of their digital replicas in perpetuity. Additionally, actors worry studios might use AI to generate “synthetic performers” from scratch and replace them entirely. Negotiations over these issues led to an impasse, prompting the union to initiate a strike and join their fellow writers on the picket lines.

After 118 days on strike, SAG-AFTRA and AMPTP reached a tentative agreement on November 9th, 2023. The contract, ratified on December 5th, includes a variety of provisions establishing  actors’ rights and guardrails on the use of AI. In addition to foundational rights such as advance notice, right to information, and regular meetings to discuss use of AI, some of the key provisions include:

• Artistic control: Companies must obtain clear consent from actors (including background actors) prior to using or altering a digital replica, or to generating a “synthetic performer” with an actor’s recognizable facial features through AI prompts using their name.
• Right to negotiate: Companies agree to give notice to the union and an opportunity to bargain over the potential use of a “synthetic performer” to replace a human role.
• Job security: Companies cannot use digital replicas to avoid hiring background actors.
• Compensation: Actors (including background actors) must get paid for the time and effort involved to create a digital replica, and for subsequent use of the replica.

International Brotherhood of Teamsters

UPS workers are no strangers to technological change. UPS was an early adopter of digital package sorting and tracking systems for warehouses and delivery drivers in the 1990s, followed by GPS-based telematics with over 200 sensors that monitor vehicles and drivers and automated driving route decision systems in the 2010s. By 2016, UPS was already investing $1 billion annually in technology and envisioning a future of “autonomous everything” including driverless vehicles and drones for package delivery.

Drivers are currently facing the prospect of becoming “robo truckers” under the constant monitoring of driver-facing cameras and other systems designed to monitor and manage them. This has prompted UPS drivers to express frustration that the company is choosing to invest in surveillance cameras rather than air conditioning in trucks to protect them from heat-related illness and death.

As a result, the Teamsters sought to negotiate new technology protections in their 2023 national contract negotiations with UPS. Facing the possibility of a strike, they reached a tentative agreement in July and ratified it in August. The contract bolstered existing rights such as requirements for advance notice and technological change committee meetings, and negotiation rights over new technology with novel technology protections for workers:

• Technology prohibitions: UPS cannot install additional driver-facing cameras nor monitor or record (audio or video) in-cab activities, and UPS must disable previously installed driver-facing cameras.
• Restrictions on technology use: UPS cannot use data collected through digital technologies, such as GPS or telematics, as the sole basis for discipline. Driver-facing sensors can only be used to train new drivers; they cannot be used as the sole basis for discipline or disqualification during the probationary period.
• Redirect outsourced work back to union members: UPS must reconfigure sorting technologies to redirect outsourced packages back to the UPS workforce.
• Requirements to adopt new safety technologies: UPS must install air conditioning in delivery trucks and backup cameras in package cars.
• Data rights: UPS must provide workers with the data captured from a new payroll system to be developed by 2026, including management adjustments.

Other key negotiations underway

The Culinary Workers Union, an affiliate of UNITE HERE that represents Las Vegas hospitality workers, is currently negotiating new contracts with the first few contracts ratified in November 2023. These contracts build upon the union’s groundbreaking 2018 technology bargaining provisions by further safeguarding workers against the impact of new technologies. New provisions provide notification about third-party data sharing, privacy protections, and right to negotiate over location monitoring and internal messaging technologies.

The United Auto Workers (UAW) has also been breaking new ground in its ongoing, multiple contract negotiations by securing an agreement with General Motors to bring EV battery production workers under the union’s national master agreement, safeguarding jobs from potential displacement due to technological change, and extending union coverage to additional workers.

As 2023 draws to a close, workers and their unions made significant progress in negotiating about emerging technologies and their impacts. The rapid speed of AI development in particular means that technology is likely to be a central issue in the future of collective bargaining across a wide range of industries. The examples above offer a promising roadmap for ensuring workers benefit and are not harmed by technological change.