NLRB Memo on Electronic Surveillance

Late last month, the National Labor Relations Board’s (NLRB’s) General Counsel announced her intention to protect employees from electronic surveillance. Accordingly, on October 31st, 2022, General Counsel Jennifer Abruzzo issued a memo on unlawful electronic surveillance and automated management practices. Generally, Abruzzo sees the NLRB achieving her goal by enforcing current law and applying already settled labor-law principles. Previously, in June 2022, the NLRB altered its electronic posting requirements in circumstances where an employer is affected by COVID-19. As employers know, all businesses with one or more employees must display specific state and federal labor law posters. The emergence of COVID-19 in 2020 led to electronic posting requirements and created questions that the NLRB needed to answer.

Overview of the General Counsel’s Memo

In general, the memo describes various technologies employers are increasingly using to monitor and manage employees closely. For instance, some employers record workers’ conversations and track their movements using wearable cameras, radio-frequency identification badges, and GPS devices. Indeed, some employers monitor employees’ computers with software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this electronic surveillance data to manage employee productivity. Consequences for employees when workplaces use these automated devices include:

• possible discipline for falling short of quotas,
• being penalized for taking leave, and
• possible discrimination by receiving individualized directives throughout the workday.

As can be seen in the General Counsel’s memo, her concern regarding electronic surveillance falls mainly on the employee’s Section 7 rights. Chiefly, employees have the right to unionize, to join together to advance their interests, and to refrain from such activity. Presently, the memo states a concern that the use of surveillance and automated management practices could hinder those rights.

Solutions to Possible Infringement

Correspondingly, the General Counsel urges the Board to adopt a new framework for protecting employees from employers’ abuse of technology. Significantly when an employer’s surveillance and management practices would interfere with activity protected by the National Labor Relations Act (NLRA). Moreover, suppose the employer’s business need outweighs employees’ Section 7 rights. In that case, she will urge the Board to require the employer to disclose to employees the following:

• the technologies it uses to monitor and manage them,
• its reasons for doing so, and
• how it is using the information it obtains.