The National Labor Relations Board may soon be coming for employers who electronically monitor their employees.
On October 31, the NLRB’s General Counsel Jennifer Abruzzo, who is the chief prosecutor for the Board, gave notice that she was intent on aggressively interpreting the National Labor Relations Act to deal with what she believes are employers’ use of intrusive or abusive electronic monitoring and algorithms that might interfere with employees’ Section 7 rights.
Under Section 7 of the NLRA, employees (even in non-union workplaces) 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 or protection," and also "to refrain from any or all such activities.” An employer who “interferes” with these rights commits an unfair labor practice.
In a General Counsel Memorandum titled “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights,” GC Abruzzo emphasizes that she will vigorously enforce “extant” (existing) law and seek to persuade the Board to apply current law in new ways to deal with monitoring that she believes interferes with employees’ Section 7 rights under the NLRA. According to the General Counsel, “Close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights. … I plan to urge the Board to apply the Act to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices.”
With a majority of Biden appointees on the Board – all Democrats – GC Abruzzo is likely to have little problem persuading the majority and having her views become “Board law.” Whether federal appeals courts or the U.S. Supreme Court will agree is another question altogether.
Existing Board law
The “extant law” to which the General Counsel refers deals with types of relatively low-tech surveillance that the Board has dealt with for years. For example, the Board has found that photographing or video recording of protected concerted activity – such as picketing and pro-union publicity – tends to interfere with employees’ Section 7 rights, absent a legitimate need to document unlawful activities that the employer reasonably has a basis to document. Likewise, it may be unlawful interference for an employer to begin a new practice of monitoring employee conduct in response to protected concerted activity, such as union organizing. This is particularly true if the employees are aware that they are being monitored. In addition to being unlawful interference, this type of monitoring can form the basis for objections to a union election.
The push beyond current law
The General Counsel appears to be intent on breaking new ground to deal with what she perceives as technological improvements in employers’ ability to monitor employees through the use of tools such as artificial intelligence, algorithms, and software. She notes that she is also concerned with employer monitoring during non-working time and in non-working areas. She expresses concern in the Memorandum that surveillance may extend "to break times and nonwork areas,” and that “excessive workloads” may “prevent workers from taking their breaks together or at all,” and that they thus “may be unable to engage in solicitation and distribution of union literature during nonworking time.” With respect to “excessive workloads,” she disregards current law that permits employers to require employees to work during working time and to establish the workload during that time. Similarly, she disregards the “real world” fact that management lawfully can be present in non-working areas and during employees’ non-working time for legitimate, lawful employer purposes and even for personal reasons – for example, eating lunch, having coffee, or talking with employees, even though they are naturally “monitoring” with their eyes and ears.
Lack of a bright-line standard
GC Abruzzo’s Memorandum does not articulate any clear standard that distinguishes lawful from unlawful monitoring. Instead, she proposes a burden-shifting standard under which the employer will be presumed to have violated Section 8(a)(1) of the NLRA when its 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.” The burden would then shift to the employer to establish that the practice at issue was narrowly tailored to address a legitimate business need. In other words, the employer would have to show that it had a legitimate business need and that its need could not be met in some other way that was less damaging to employee rights. Even if the employer met that burden, the Board would then balance the employer’s right to manage the business with the employees’ Section 7 rights.
In the unlikely event that the employer cleared all of these hurdles, the employer would then be required to disclose to employees the monitoring technology being used, why it is being used, and how the employer is using the information obtained. The General Counsel asserts that “[o]nly with that information, can employees “intelligently exercise their Section 7 rights and take appropriate measures to protect the confidentiality of their protected activity if they so choose.”
Finally, in any settlements of unfair labor practice charges alleging interference related to use of electronic monitoring technology, the General Counsel directs the Board’s Regional Offices to require employers to report to the U.S. Department of Labor their expenditures on electronic monitoring technology, using the DOL’s Form LM-10
The General Counsel’s announced approach essentially puts many current management practices and methods under the microscope for a potential finding of an unfair labor practice. The burden will be on employers to prove that they need their monitoring systems and that there are no reasonable, “less-interfering,” alternatives. It would also impose disclosure obligations that could defeat the productivity-enhancing purposes of the systems altogether. Technological tools that are called into legal question include security video, video and electronic surveillance systems required of food processors and other highly regulated industries for which real-time recording and later tracking of facts is critical, key stroke logging and computer mouse tracking, internet monitoring, computer webcams and microphone tracking, timed screenshot systems, vehicle or cell phone tracking, telephone conversation recording, and software that tracks logins and logouts of computer databases. Regrettably, this interpretation of the NLRA may ultimately harm the employees the General Counsel purportedly seeks to protect. In addition to enhancing employee productivity, electronic monitoring often makes it possible for employers to allow employees to work remotely.
It's worth keeping in mind that the GC’s position is but one piece of the legal patchwork that employers face when monitoring workers. The COVID-19 pandemic gave rise to remote working arrangements, and many employers have increased their use of technological tools to manage their increasingly off-site workforces. As a result, the legal landscape is evolving rapidly. Employers should become familiar with and ensure compliance with the federal Electronic Communications Privacy Act and the laws of the states, districts, and territories where they employ workers – for example, California. Employers should also bear in mind that remote workers are generally governed by the employment laws of the states where they are working – not the state where the employer is based. Similarly, employers with international operations should become familiar with the laws in their areas of operation and where employees may be working remotely. Consultation with qualified counsel is recommended.