NLRB deals with oversight of employer use of surveillance technology

Over the past decade, and arguably accelerated by the pandemic, employers have increasingly relied on new technologies to monitor, manage, and hire employees. Some of these technologies include tracking devices, keyloggers, audio recording software, and automated decision-making tools.

Federal, state and local labor and employment codes and policies have begun to address the accelerated adoption of this technology by employers. For example, the US Equal Opportunity Commission (EEOC) in Illinois, Maryland and New York City have issued guidelines and/or regulations addressing these technologies and their potential impact on the workplace.

The National Labor Relations Board (NLRB) has now joined the fray. On October 31, 2022, NLRB General Counsel (GC) Jennifer Abruzzo released a memorandum announcing her “plan to urge the board to apply the law to protect employees as much as possible from intrusive or abusive electronic and automated surveillance.” protect management practices that would tend to interfere with Section 7 rights.”

While GC Abruzzo recognizes that employers may have legitimate business reasons for using electronic monitoring and automated administration, GC Abruzzo identified actions by employers related to the use of such technologies, which they consider to be in violation of existing National Labor Relations Act (NLRA ), and in particular the rights afforded to workers under Section 7 of the Act (e.g. the right to “establish, join or assist labor organisations, engage in collective bargaining through representatives of their own choice and coordinate with others engage in activities for the purpose of collective bargaining or other mutual aid or protection”). In particular, and despite the increasing use of technology by unions, GC Abruzzo has not identified any activity by unions that could constitute violations of the NLRA. Among other possible violations of the NLRA, GC Abruzzo has reported the following:

  • The use of technology to obtain information about union activities

  • Introduction of new technologies in response to Section 7 activities

  • Disciplinary action for employee protests against surveillance technology or algorithmic management technology

  • Using artificial intelligence to screen job applicants when an algorithm makes or recommends decisions based on employees’ protected activities or propensities for protected activities. (This derivative liability is consistent with recent joint guidance from the U.S. Department of Justice and the EEOC, in which the authorities made it clear that employers could be held liable for violations of the law by Americans with disabilities related to third-party technology.)

  • Eliminate discriminatory application of “production quotas or efficiency standards [employers] of union supporters”

  • Failure to provide information or negotiate with existing unions about tracking technologies and their use of the data they collect

In addition to announcing activities that the General Counsel Office perceives as violating the law, GC Abruzzo also announced that it will “urge the Board to adopt a new framework” regarding employer use of technology. In particular, GC Abruzzo announced the following new proposed standard:

An employer is alleged to have violated Section 8(a)(1) if, taken as a whole, the employer’s supervisory and management practices would tend to prevent a reasonable employee from engaging in activities protected by law.

If an employer determines that the practices in question are narrowly tailored to meet a legitimate business need – that is, that its need cannot be met by means that are less intrusive on workers’ rights – GC Abruzzo will “request the Board to consider the respective interests of the employer and the employee to determine whether the law permits the employer’s practices.” If the employer’s business needs outweigh the rights of the employee under Section 7, GC Abruzzo will “request the Board to require the employer to comply with the Disclose to workers the technologies it monitors and manages, the reasons for doing so, and how the information obtained is used. Only with this information can employees intelligently exercise their Section 7 rights and take appropriate steps to protect the confidentiality of their protected activities, if they so choose.”

This proposed framework is structurally consistent with the approach proposed by GC Abruzzo to govern face-neutral labor rules that may impact workers’ rights in Section 7. In addition, the framework is consistent with the growing trend in federal and state regulations and guidance in this area to propose or require employer notification related to employee monitoring, surveillance and use of automated technology.

In the absence of rulemaking, the proposed standard requested by the GC Abruzzo will not have the force of law unless the NLRB adopts it in a published statement. Nonetheless, it seems likely that GC Abruzzo will investigate cases where the employer uses surveillance, surveillance and automated management technology. In fact, GC Abruzzo announced a mandatory filing with the NLRB Advisory Division for “any case involving intrusive or abusive electronic surveillance and algorithmic management that interferes with the exercise of Section 7 rights.”

Given the rapidly evolving compliance risks in this area, employers currently using electronic monitoring or automated decision-making tools may want to assess their labor compliance risks and consider guard rails to counter potential violations.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.National Law Review, Volume XII, Number 311

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