By Jonathan J. Spitz with Jackson Lewis P.C., Richard F. Vitarelli with Jackson Lewis P.C., Joseph J. Lazzarotti with Jackson Lewis P.C. & Chad P. Richter with Jackson Lewis P.C.
Responding in part to the nature of the post-COVID-19 remote workplace, National Labor Relations Board General Counsel (NLRB GC) Jennifer Abruzzo has released a memo on employers’ use of electronic monitoring and automated management in the workplace. The memo also directs NLRB Regions to submit to the Division of Advice any cases involving intrusive or abusive electronic surveillance and algorithmic management that interferes with the exercise of NLRA Section 7 rights.
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Citing concerns over the interference of labor organizing and bargaining communications, Abruzzo looks to broaden the scope of the NLRA. In some cases, she urges, the NLRB should find employers presumptively violate the NLRA if their technology has a tendency to interfere with or prevent employees from engaging in protected activity. Importantly, the scrutiny called for in the memo applies to all employers subject to the NLRA, not just those employers with a unionized workforce.
Some level of remote work is relatively common nowadays. Many employers, however, are struggling to engage with employees, maintain productivity, ensure security of IT systems, and otherwise manage their workplace. Of course, monitoring employees in the “workplace” is not new and not limited to remote workers. Workplace monitoring technologies, however, have advanced considerably in recent years, as noted in the memo:
It is well documented that employers are increasingly using new technologies to closely monitor and manage employees. In warehouses, for example, some employers record workers’ conversations and track their movements using wearable devices, security cameras, and radio-frequency identification badges. On the road, some employers keep tabs on drivers using GPS tracking devices and cameras. And some employers monitor employees who work on computers—whether in call centers, offices, or at home—using keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.
NLRB precedent prohibits employers from unlawfully preventing discussions related to organizing or bargaining. Employers also cannot retaliate against employees for exercising such activities. For example, National Labor Relation Act (NLRA) Section 7 protects employees’ right to engage in concerted organizing activities. Similarly, Section 8 prohibits employers from interfering with, restraining, or coercing employees exercising such rights. Likewise, certain surveillance practices are unlawful under the NLRA, such as photographing employees engaging in protected activities.
Abruzzo requests that the Board adopt a broader framework on the use of electronic management and monitoring tools. While she acknowledges the “Board must reach an accommodation between competing employer interests and employee rights,” the memo urges the Board to find that employers presumptively violate Section 8 “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 activated protected by the Act.”
Abruzzo suggests that employers establish “narrowly tailored” practices to address “legitimate business needs” as to whether the practices outweigh employees’ Section 7 interests. If the employer establishes that its narrowly tailored business need outweighs those rights, the GC nonetheless will “urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains,” unless the employer can establish special circumstances.
The impact on employers that use monitoring and automated management technology can be significant if the NLRB implements Abruzzo’s suggestions.
Abruzzo also reaffirmed the inter-agency approach between the NLRA and other federal agencies, including the Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor to address new cases involving technology in the workplace. Indeed, the regulation of monitoring and automated management technology is growing. For example, the Equal Employment Opportunity Comission (EEOC) released a technical assistance document addressing the potential pitfalls of using decision-making software, including artificial intelligence, and compliance with the federal civil rights laws that agency enforces.
As employers work to manage a new and changing workplace, and adopt technologies to help in the process, they will need to evaluate these technologies beyond their primary purpose and consider how they may affect compliance with a range of other obligations.
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