NLRB ELECTRONIC MONITORING

On October 31st, 2022, the General Counsel (GC) of the National Labor Relations Board (NLRB) released a memo urging the Board to restrict the ability of employers to electronically monitor employees or use artificial intelligence or algorithm-based decision-making in the workplace. The GC stated her intention is to “protect employees” from “omnipresent surveillance” and “intrusive or abusive electronic monitoring and automated management practices” used by employers in the workplace today.

Currently, Board law restricts an employer from surveilling employees, such as taking pictures or video recording, when employees are engaged in open protected concerted activity, such as picketing. Additionally, it would be unlawful under current Board law for an employer to install new technology to monitor employees in response to Section 7 activity, or to use existing technology to identify employees engaging in such activity.

Now, the GC is imploring the Board to apply current law “in new ways.” The framework of this “new way” will first find that an employer has “presumptively violated [the Act] 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 Act.” The employer will then be able to defend itself by “establish[ing] that the practices at issue are narrowly tailored to address a legitimate business need—i.e., that its need cannot be met through means less damaging to employee rights.” However, even if an employer’s business need outweighs employees’ Section 7 rights—absent “special circumstances [that] require covert use of technologies”—employers will be required 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.”

Under this proposed framework, employers will be forced to assume the burden of having to defend the use of routine workforce management technologies in their workplaces. Security cameras and GPS tracking devices and cameras for drivers are just a few of the “new” technologies the GC gave as examples in her memo.

Finally, the GC also mentioned, buried in a footnote, that Regional Offices are to add language as part of any settlement proposal that mandates employers to report expenditures on surveillance and electronic management technology on a Form LM-10 to the Department of Labor’s Office of Labor Management Standards.

Given the aggressive agenda the GC has already been pursing, employees should consider the type of electronic management technology used in their workplace. If you have questions concerning these anticipated changes, please feel free to contact one of our labor attorneys by calling (501) 371-9999.