5. Legal concerns 5.4 Neurotechnology in the workplace With the shift to remote work during the COVID‑19 pandemic, the adoption of online monitoring tools by employers has become increasingly common. However, due to rapidly developing technology, constant monitoring of employees can be expanded from monitoring desktop activity to potentially assessing their emotional state and degree of concentration and alertness.255 While having advanced mechanisms to assess employee productivity is not a new concept, neurotechnology may provide employers with a more sophisticated mechanism to monitor their employees’ mental patterns throughout their workday. The UK ICO has estimated that neurotechnologies will be readily adopted into workplaces within four to five years.256 Surveillance via EEG assessment, which is a relatively accessible form of neurotechnology, can allow employers to have insight into an employee’s immediate cognitive state such as level of attention,257 mind wandering, and effort withdrawal.258 Considering the rapid development of neurotechnology, more advanced fMRI and BCI measures could also be utilised to go so far as to understand employees’ minds and alter their work performance.259 In fact, neurotechnology, in the form of transcranial direct current stimulation (tDCS), is already being used as an enhancement tool to combat fatigue during the workday.260 There can be potential benefits to such surveillance in assisting employees to understand their fluctuations in concentration levels and to help avoid accidents caused by a lack of concentration. This is especially beneficial in developing safety measures for occupations requiring high levels of attention over long periods of time such as truck driving and paramedicine.261 While there is an argument that heightened surveillance of employees during the workday will increase productivity, it may in fact have the opposite effect. Employees may be subject to such stress and pressure, that in the long run, it hinders their physical and mental health which, in turn, reduces the overall productivity of the workplace.262 Due to its nature and potential impact on individual rights and autonomy, the legal and ethical implications of such technologies continue to be a pressing concern. Neurodiscrimination Due to the employer’s access to their mental patterns, employees can be put in a vulnerable position where their neurological levels of work productivity and concentration can be used to make judgements about them.263 This employer‑employee power imbalance is especially relevant and concerning in the context of hiring, firing and promoting current employees. For example, employers could potentially neurologically track signs of early cognitive decline with the aim of using this information in decisions concerning redundancy, contributing to age and disability discrimination in the workplace.264 Further, in using neural data (acquired via neurotechnologies) to promote, hire and fire employees, employers are essentially relying on a judgement based on automated estimations of cognitive abilities, subject to the degree of human involvement. This can result in discrimination where there is a barrier limiting those who may not meet the neurological standards set by an employer, resulting in a lack of diversity and unequal opportunity in the workplace.265 While it is normal to have standards based on education and experience in a competitive workplace, mechanising such standards would mean overlooking numerous factors such as personality, levels of empathy, creativity and other qualities which may not be tangibly gauged by neurotechnology.266 Australian Human Rights Commission 35