Defending Workers’ Rights in the Age of Algorithmic Management

By Clayton Wong

The Law Students on Workers’ Rights series publishes essays from current and incoming students from top law schools across the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What is the most significant challenge facing workers’ rights, and what role should employment attorneys play in addressing that challenge?”

It is genuinely jarring to think about what used to pass for a workplace crisis. Not that long ago, the pinnacle of office misery was a supervisor lingering just a little too close to your monitor, or the collective groan of finding a delayed schedule taped to the wall. Looking back, those mundane, flesh-and-bone frustrations feel almost comforting. At least back then, you knew who was watching you. 

However, in 2026, the physical dangers of the twentieth-century factory have largely been supplanted by a more insidious, invisible architecture of control. As employers increasingly hand the keys of human resources over to machine learning, the traditional power dynamic between labor and capital has relocated entirely into the opaque depths of code. 

The biggest crisis facing workers’ rights today isn’t physical safety—it’s the profound erosion of data privacy and the iron-fisted, opaque rule of algorithmic management. If employment attorneys do not rapidly evolve to play defense in this digital arena, the fundamental rights of the American worker will be quietly dismantled.

This modern reality is defined by massive, interconnected threats, beginning with the unchecked proliferation of invasive surveillance. Software known as “Bossware” relentlessly tracks keystrokes, monitors mouse movements, and even analyzes facial expressions through webcams to calculate arbitrary engagement levels. Employees, particularly remote and hybrid workers, are essentially spied on in their own homes as companies harvest biometric data by the terabyte, creating a toxic culture of perpetual observation. 

Coupled with this surveillance state is the profound danger of algorithmic bias. While corporate proponents frequently argue that Artificial Intelligence (AI) hiring and performance tools eradicate human error, these algorithmic black boxes are actually made with historical data sets saturated with pre-existing societal prejudices. Rather than eliminating discrimination, the technology effectively launders it through complex mathematics. When an algorithm flags a worker for termination, uncovering the discriminatory logic driving that objective-sounding decision is staggeringly difficult.

Fortunately, the regulatory environment is beginning to wake up to the threat, providing the legal foundation for resistance. States like New York have attempted to curtail constant screen capturing and non-consensual audio recording. More importantly, privacy frameworks like the California Privacy Rights Act and Illinois’s Biometric Information Privacy Act are finally giving workers actionable rights to interrogate, amend, or outright delete employer-collected data. Coupled with new transparency mandates that force corporations to explicitly disclose when automated systems influence high-stakes employment outcomes, workers are no longer entirely defenseless against algorithmic overreach.

This is exactly why the modern employment attorney has to completely reinvent their job description. A statute is merely text on a page until it is vigorously enforced, which is why the contemporary employment attorney must function as a proactive structural architect rather than a reactive litigator. 

Legal counsel is increasingly required to spearhead algorithmic audits alongside data scientists, forcing transparency into systems specifically designed to be opaque to ensure they align with civil rights mandates before implementation. When companies inevitably overreach by secretly harvesting data or running discriminatory algorithms, attorneys must leverage these new laws to hit violators with the kind of eye-watering financial penalties that force corporate compliance. 

For labor attorneys working with unions, the battlefield is at the negotiating table, where collective bargaining agreements must now include strict AI clauses that transform data sovereignty into a foundational worker protection. Perhaps most vitally, legal practitioners must aggressively institutionalize human oversight, stipulating that an actual person capable of contextual reasoning and empathy must evaluate algorithmic output before any adverse employment action occurs.

We stand at a precarious technological threshold. The technology is dazzling, and corporate leadership is entirely focused on the promise of optimization, but efficiency cannot justify the systematic degradation of workplace autonomy. Employment attorneys remain the critical barrier preventing the modern workforce from being reduced to a collection of disposable data points.

Above all, lawyers must fight tooth and nail for the “human-in-the-loop.” They must mandate that an actual human being—someone capable of context and empathy—reviews any algorithmic output before a worker is disciplined or fired. The fight today is a messy one, but it’s the only way to ensure the modern workplace keeps its humanity.

Reflections from Charles Joseph

Major federal labor protections like the FLSA and NLRA date back to the 1930s. The EEOC-enforced discrimination protections largely date to the 1960s. Decades later, the way Americans work has changed drastically. Yet our labor laws lag far behind. 

Wong reminds us that the threats to workers look different in the 2020s than they did in the 1960s or 1930s. And because of that, employment lawyers must adapt their tactics to the threats posed by technologies such as algorithmic bias. Just as efficiency-motivated tech requires a “human-in-the-loop,” as Wong argues, employment lawyers can be the worker-motivated force for empathy in this new work environment. 

Clayton Wong holds a bachelor’s degree from the University of Texas at Austin and currently attends St. Mary’s University School of Law. Wong is the runner-up for the 2026 Charles E. Joseph Employment Law Scholarship. Contact Wong on LinkedIn. 

Charles Joseph has over two decades of experience fighting for workers’ rights as an NYC employment attorney. He is the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $200 million for clients.