Unions Claim Retailers' Surveillance Tech is Being Used to Bust Unions
What Surveillance Techniques Are Not Allowed

'They Were Spying On Us': Amazon, Walmart, Use Surveillance Technology to Bust Unions

Technology-enabled surveillance—from keycard tagging and email monitoring to social media tracking and worker profiling—often introduced in the name of safety and productivity can have a chilling effect on organizing and allow companies to sidestep labor law. It enables employers to profile workers and gain insights into employees' private lives and their sentiments—who's likely going to be the most outspoken.

Amazon and Walmart are two of the best-known examples of employers using surveillance technology during union battles, sometimes skirting the law. Leaked internal documents from Walmart included methods for monitoring employee activity and conversations about union activism, Amazon's Whole Foods utilized heat maps that were based on predictive analytics to track store locations considered at high risk of union activity, and Google reportedly has a system to alert managers to any internal meetings scheduled with 100 or more employees, "partially to weed out employee organizing," according to the human resources newsletter HR Brew.

Since at least September, HelloFresh, which has been locked in a bitter struggle with UNITE HERE, which seeks to organize its workers, has been tracking social media posts about union activity using a marketing tool called Falcon. It's reportedly discussed monitoring the employees behind such posts and even reported such posts as spam to diminish their visibility. The company explained to Vice that "it is our duty to correct misinformation and mischaracterizations of our company."

There are few restrictions on how these tools are used. "Employers do have surprising freedom to monitor what their employees do on their own systems," said V. John Ella, an employment and business lawyer based in Minneapolis. These practices became even more invasive as the shift to remote work dissolved boundaries between home and work for many.

Surveillance has been a component of anti-union campaigns since the Pinkerton National Detective Agency began infiltrating unions in the 1870s. The passage in 1935 of the National Labor Relations Act, which established the right to form a union, did not address spying directly, though the practice is at odds with the act's aim to protect concerted activity.

Over the years, case law has accrued to delineate what kinds of surveillance constitute an unfair labor practice. According to research by Charlotte Garden, a professor at the Seattle University School of Law,
the NLRB has found a range of practices to breach the law, including "watching employees with binoculars, watching union activity on a daily basis and for hours at a time, posting guards in previously unguarded areas, [and] photographing or videotaping employees and monitoring their phone calls in response to union activity."

In general, though, if an employer sees union activity
out in the open, it isn't considered an unfair labor practice. The NLRB judges whether the employer's methods are "out of the ordinary" in a manner that chills collective action. As Garden notes, this allows employers to "set the baseline"—and encourages the adoption of the broadest possible surveillance.

Today's technology drastically reduces the amount of work you need to do to keep tabs on workers, making comprehensive surveillance financially viable for the first time.