Data Analytics and the Erosion of the Work/Nonwork Divide

Numerous statutes and common law doctrines conceive of a dividing line between work time and nonwork time and delineate the activities that must be compensated as work. While technological innovations and increasing desires for workplace flexibility have begun to erode this divide, it persists, in part, because of the ways in which the division protects employers and employees alike. Nonetheless, the explosion of data analytics programs that allow employers to monitor and rely upon a worker's off‐duty conduct will soon weaken the dividing line between work and nonwork in dramatically greater and more troubling ways than ever before. The emergence of programs allowing employers to track, predict, rely upon, and possibly control nonwork activities, views, preferences, and emotions represents a major blurring of the line between work and nonwork. This article contends that these advances in data analytics suggest a need to reexamine the notion of work versus nonwork time and to question whether existing protections adequately consider a world in which these lines are so significantly muddled. As a society, we need to acknowledge the implications of the availability of massive quantities of employees’ off‐duty data and to decide whether and how to regulate its use by employers. Whether we, as a society, decide to allow market forces to dictate acceptable employer behavior, choose to regulate and restrict the use of off‐duty data for adverse employment decisions, or find some middle ground that requires disclosure and consent, we should choose our own course rather than allowing the technology to be the guide.