The limits of data rights for the workplace

Many discussions around data governance revolve around firms, citizens and consumers – and rightfully so. One aspect that is being under-discussed is the workplace. This shows in both existing regulatory approaches and the application of competition policy, as well as in discussions on new rules regarding data access and sharing. The TUAC briefing paper on ‘The limits of data rights for the workplace’ (download on the upper left side) addresses the limitations of current data rights for the workplace by discussing data portability in the data governance and competition policy context. The paper draws on recent TUAC submissions to the OECD’s Competition Committee Hearing on Data Portability, Interoperability and Competition and to the OECD Horizontal Project, Going Digital III, on data governance.

It shows that:

• The workplace is typically not at the forefront of data governance and competition debates. This is an omission in terms of resolving data rights, collection, access and sharing issues, but also concerning anti-competitive effects on job mobility and quality.
• A high amount of data is generated on-the-job, both in the public and private sector. Employer’s control over recruitment and on-the-job data, limitations to data portability and ownership rights result in an unfair position of workers vis-à-vis their employer in terms of access to data and the sharing of its value. This can lead to adverse practices affecting the livelihoods, health and safety of workers.
• Enforcement of proper data portability rights is particularly important for platform workers. The business model of platform work is based on ratings and reviews that result in an online CV for workers attesting to the quality of their work and allowing them to get more clients. Therefore, if workers are not able to fully access and use their data, they are tied to a unique platform.
• The accumulation and misuse of workplace data clearly feed into labour market monopsonies. In particular, heightened control, interference with remuneration and the use of data to deter employees from looking for another employer all constitute anti-competitive practices designed to accentuate the asymmetry between employer and employee further. The increasing ability of employers to pay wages below normal market conditions without losing their workforce, while gaining from data-driven productivity, is a source of concern.
• Current standards and approaches are insufficient to cover the workplace and to resolve balance of power, network effect and other lock-in issues, including in the platform economy.
• To operationalise data portability that works for workers, consumers, citizens and firms, data policy makers and regulators need to work hand in hand with competition authorities. They also need to expand the notion and legal base for data portability and devise stand-alone regulation on data access and sharing.
• Competition policies should provide remedies if data access and sharing provisions are not respected. This should especially be the case if one entity accumulates, uses and shares data in a way that brings them in a dominant market position.