On October 31, 2022 the General Counsel of the National Labor Relations Board released a memo urging the Board to adopt a “new framework” for protecting employees from “intrusive or abusive” forms of electronic monitoring and automated management technologies that interfere with employee rights to self-organize and to engage in collective bargaining under Section 7 of the National Labor Relations Act.
The memo’s definition of electronic monitoring and automated management technologies is broad, capturing such diverse practices as:
- Recording worker conversations or tracking worker movements through wearable devices, security cameras or radio frequency identification badges.
- Tracking drivers through GPS devices or cameras.
- Monitoring employees in the office or at home using key loggers, screenshots, webcam photos or audio recordings.
- After-hours tracking of employee whereabouts or communications through employer-issued phones or wearable devices, or through applications installed on worker devices.
- Use of algorithm-based decision-making to manage employee productivity, screen job applicants or issue discipline.
While noting existing precedent protecting workers from technological infringement of their Section 7 rights, the memo calls for the Board to “adapt the Act to changing patterns of industrial life” by adopting a new framework that will:
- Protect the “right to privacy” that allows employees to participate in protected activities “without the fear that members of management are peering over their shoulders”; and
- Address the “breakneck pace of work set by automated systems” that may severely limit or prevent employees from engaging in protected conversations.
The memo notes that employers may have legitimate reasons for using electronic monitoring and automated management technologies, but that such reasons must be balanced against employee rights under the Act. To that end, the memo recommends that in appropriate cases, the Board should:
- Find that an employer has presumptively violated the Act where surveillance and management practices, viewed as a whole, would “tend to interfere” with or prevent a reasonable employee from engaging in activity protected by the Act;
- Require an employer to establish that the practices at issue are narrowly tailored to address a legitimate business need (i.e. that the need cannot be met through means less damaging to employee rights);
- Balance the respective interests of employers and employees to determine whether the Act permits an employer’s practices; and,
- Require employers to disclose the technologies it uses, its reasons for doing so, and how it uses the information it obtains unless the employer can demonstrate special circumstances requiring covert use of monitoring and management technologies.
The extent to which these presumptions and obligations will be applied remains to be seen. Employers who utilize any monitoring or management technologies in respect of employees should be prepared for the possibility of complaints based on interference with Section 7 rights.
The GC’s memo ends by committing to an interagency approach to workplace monitoring and management technologies, working with other Federal entities to address such harms as:
- Discrimination in hiring.
- Misclassification of employees and independent contractors.
- Unfair and deceptive pay practices.
- Selling or sharing workers’ personal data.
- Injuries caused by overwork and repetitive motions.
This memo is a reminder that along with the growth in influence of monitoring and management technologies in the workplace there is also a growing unease among employee advocates over the potential for abuse. Scrutiny of the use of these technologies will likely increase at the NLRB and other federal agencies moving forward. Consider consulting counsel with questions about use of such technologies in the workplace.