Update Applicable to: 
All employers who track their employees.

What happened?
On October 31, 2022, the National Labor Relations Board’s (NLRB) General Counsel Jennifer Abruzzo released a memo that announced her intention to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices through vigorously enforcing current law and by urging the Board to apply settled labor-law principles in a new framework

What are the details? 
The memo describes various technologies increasingly being used to monitor and manage employees closely. For instance, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges, and GPS tracking devices.  And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave and providing individualized directives throughout the workday.

“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer” said General Counsel Abruzzo. “Thus, I plan to urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”

The General Counsel will urge the Board to adopt a new framework for protecting employees from employers’ abuse of technology by holding that an employer has presumptively violated the Act where an 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. 

Suppose the employer’s business need outweighs employees’ Section 7 rights unless the employer demonstrates that special circumstances require covert use of the technologies. In that case, she 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 uses the information it obtains.

The memo also notes that the General Counsel is committed to an interagency approach to these issues, as numerous agencies across the federal government are working to prevent employers from violating federal law using electronic surveillance and algorithmic management technologies. The General Counsel has recently signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor, facilitating information sharing and coordinated enforcement on these issues.

For more information, please see the links below:

NLRB Memo

NLRB Article

What do employers need to do?
Employers should review the links provided above and may want to review their tracking systems so that they do their best to ensure that they are not violating their employee’s privacy.

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