The COVID-19 pandemic and the attendant shift toward remote work, together with recent technological advances, have drastically expanded the reach of employers' capacity to manage and monitor employees both in and outside of the workplace. As we previously wrote, while electronic monitoring helps employers keep an eye on employee productivity, promote a safe and secure work environment, and enforce workplace policies, employers must also consider federal and state laws to minimize the legal risks of electronic workplace monitoring. In her October 31, 2022 General Counsel Memorandum 23-02, National Labor Relations Board (the Board) General Counsel Jennifer Abruzzo (GC) announced upcoming challenges that employers will need to confront as they continue to implement electronic monitoring and algorithmic management of employees.
The GC's memorandum indicates that she plans to vigorously enforce existing law by "urg[ing] the Board to apply the [National Labor Relations Act ('NLRA')] to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights." The GC emphasizes that "close, constant surveillance and management through electronic means threaten employees' basic ability to exercise their [Section 7] rights" and "may severely limit or completely prevent" employees from having discussions about the terms and conditions of their employment as well as unionization." Section 7 of the NLRA provides that employees have "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection."
In situations where monitoring intrudes upon employee privacy before employees are hired and even during their time spent outside of work, the GC emphasizes that many of these practices already violate the NLRA. Such practices include the use of artificial intelligence to screen job applicants, discipline employees, or apply production quotas or efficiency standards to terminate union supporters. The GC asserts that the use of surveillance or even technology that "makes employees reasonably fear such far-reaching surveillance" may ultimately serve to intimidate employees, thereby preventing them from exercising their Section 7 rights anywhere.
The memorandum makes clear that the Board, using its "responsibility to adapt the [NLRA] to changing patterns of life," will set out to examine employee rights to concerted activities in comparison with an employer's legitimate business reasons or concerns to address whether electronic monitoring and automated management violates the NLRA. Specifically, the GC urges the Board "to find an employer has presumptively violated Section 8(a)(1) [of the NLRA] where the employer's 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 [NLRA]." She adds that even where the employer's business need outweighs employee rights, "unless the employer demonstrates that certain circumstances require covert use of technologies," she will urge the Board to require employers to do the following: "[i] disclose the technology used to employees to monitor and manage them, [ii] its reasons for doing so, and [iii] how it is using the information it obtains."
The GC's guidance makes abundantly clear that she will zealously pursue complaints in any case involving modern workplace technologies. By using an interagency approach to prevent employers from violating federal law, the Board will facilitate information sharing and coordinated enforcement regarding various surveillance and monitoring issues through signed agreements with the Consumer Financial Protection Bureau, the Federal Trade Commission, the Department of Justice, the Equal Employment Opportunity Commission, and the Department of Labor. Employers should review their current policies, procedures, and technology used for employee surveillance to ensure they have legitimate reasons for their implementation. Even if employers can justify the use of such technologies, depending on the circumstances, the NLRB could impose charges for different violations of employees' rights to protected, concerted activities. Therefore, employers are highly encouraged to reach out to the authors of this article or any other member of Venable's Labor and Employment Group.