Publication Date
2025
Abstract
Employers have a myriad of technologies at their disposal to help them surveil their employees, and they deploy these technologies for several reasons. Some of these reasons—e.g., monitoring time and attendance, ensuring compliance with occupational safety standards, protecting against certain data disclosure, etc.—are legitimate. Others are not. Chief among the illegitimate reasons is monitoring employees in retaliation for reporting alleged employer misconduct internally or externally. Just as terminating, demoting, or transferring an employee constitutes an adverse action for retaliation claims, subjecting an employee to surveillance because the employee has engaged in protected activity is also an adverse action. Courts and federal administrative agencies have condemned this practice. However, information asymmetries between employees and employers, coupled with a legal analytical framework for retaliation claims out of step with the evolution of surveillance technologies, produce anemic enforcement of antiretaliation laws and provide noncompliant employers with a competitive advantage.
This article examines how heightened surveillance of employees after they engage in protected activity perpetuates retaliation, exacerbates preexisting racial and gender surveillance disparities, and promotes other employment abuses under existing legal frameworks. The article proposes judicial and legislative interventions that will help deter employers from engaging in retaliatory surveillance and aid courts and administrative agencies in detecting and remedying retributory employer conduct.
Recommended Citation
Steele, Daiquiri J.
(2025)
"Surveillance as Retaliation,"
Georgia Law Review: Vol. 59:
No.
2, Article 4.
Available at:
https://digitalcommons.law.uga.edu/glr/vol59/iss2/4