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Finally, new monitoring technologies can help firms to shunt workers outside of their legal boundaries through independent contracting, subcontracting, and franchising. Various economic theories suggest that firms tend to bring workers in-house as employees rather than contracting for their services—and therefore tend to accept the legal obligations and financial costs that go along with using employees rather than contractors—when they lack reliable information about workers’ proclivities, or where their work performance is difficult to monitor. In a Coasean approach, the challenge of monitoring workers outside the firm may be a transaction cost that encourages the firm to bring them inside as employees […]
Yet where firms can develop near-perfect knowledge about workers’ performance, the calculus changes.
he says earlier: "firms may use monitoring technologies to push workers to perform harder, faster, and for less."
This suggests, in my mind, a strategy of worker empowerment and deliberative governance rather than command-and-control regulation. At the firm or workplace level, new forms of unionization and collective bargaining could address the everyday invasions of privacy or erosions of autonomy that arise through technological monitoring. Workers might block new monitoring tools that they feel are unduly intrusive. Or they might accept more extensive monitoring in exchange for greater pay or more reasonable hours.
Workers could also be woven into state and federal policy-making in a more sustained fashion. They could be guaranteed seats on new administrative boards established to consider responses to technological change, for example, or given a formal role in a more robust industrial policy that aims to create high-skill jobs and to train workers to take them on. Such proposals update a classic theme in information law: the potential for new technologies to encourage greater democratization. The twist is that to exert democratic control over contemporary technologies, we may need to repurpose a paradigmatic “old-economy” tool: labor unions.