NLRB General Counsel urges ‘strong enforcement’ of employer use of technology | Davis Wright Tremaine LLP

Employers have long used electronic management tools to track and improve employee performance, including GPS on company vehicles, employee badges for access or time tracking, and monitoring software on work computers. The proliferation of remote working during the COVID-19 pandemic has led to an increase in the availability – and use – of e-government technology, which has come under increased scrutiny from regulators.

On October 31, 2022, National Labor Relations Board (NLRB) Legal Counsel, Jennifer Abruzzo, in Memorandum GC 23-02, announced their plans to “strongly enforce” existing law and to urge the five-member board to apply existing principles in new ways, particularly against employers who use artificial intelligence to assist in monitoring or decision-making related to hiring, discipline or performance management. Abruzzo’s stated concern is that employers’ use of “intrusive or abusive electronic surveillance and automated administrative practices” could reasonably be expected to interfere with workers’ rights to engage in activities regulated under Section 7 of the National Labor Relations Act ( NLRA) are protected.

Plan to increase enforcement of existing NLRB law

The first part of the General Counsel’s plan is to vigorously enforce existing NLRB precedent that protects employees from certain types of surveillance and the technologies employed by management. Abruzzo claims that the NLRB has long held that “the mere observation by an employer of open, public union activity on or near his property does not constitute unlawful surveillance”. Hoschton Garment Co., 279 NLRB 565 (1986). Accordingly, Abruzzo plans to rely on specific cases where certain employer practices have been identified that already constitute unlawful surveillance. For example:

  • An employer may violate 8(a)(1) of the NLRA by introducing new surveillance technology in response to activities protected by Section 7, or by using existing technology for the purpose of detecting Section 7 activities, such as z Employee social media accounts.
  • Employers who rely on artificial intelligence to screen applicants or impose disciplinary sanctions may also violate Section 8(a)(3) of the NLRA if the underlying algorithm makes decisions based on employees’ protected activities.
  • Employers violate Section 8(a)(1) of the NLRA when they discipline employees who collectively protest against workplace surveillance or the pace of work set by algorithmic management. Employers also violate Section 8(a)(3) by discriminatory use of production quotas or efficiency standards to remove union supporters.
  • Employers also violate Section 8(a)(5) of the NLRA if they fail to negotiate with the union acting as the workers’ bargaining representative over the introduction of tracking technology, or fail to provide the union with information about the use of technology provided by the employer or the data that the technology aggregates.

Plan a new load shifting framework

Abruzzo also plans to press the board to adopt a new framework to protect workers’ rights under Section 7. Under the framework proposed by Abruzzo, employers would bear the burden of justifying their use of seemingly routine management technology. As such, an employer would be “presumably in violation of Section 8(a)(1) of the Act if, taken as a whole, its monitoring and management practices would tend to disrupt or prevent a reasonable worker from engaging in protected activities.”

If the employer overcomes the presumption and determines that the practices in question are closely tailored to meet a legitimate business need, that is, its needs cannot be met by means that are less intrusive to workers’ rightsAbruzzo will ask the Board to weigh the respective interests of the employer and employees to determine whether the law allows the employer’s practices.

If the employer’s business needs outweigh the rights of workers under Section 7 and justify the use of those technologies, unless specific circumstances requiring the covert use of technology are demonstrated, employers would need to notify workers of the use of technology along with the reason for this purpose disclose the use of this technology as well as the expected use of the information that it receives from this technology.

Abruzzo notes that the framework she favors is consistent with the approach she urged the board to evaluate an employer’s face-neutral labor rule to determine whether that rule could interfere with the exercise of affected workers’ Section 7 rights. Importantly, consistent with the General Counsel’s ongoing efforts to impose extraordinary special measures on employers, Abruzzo plans to press the board to order additional legal remedies to address employer use of such technologies.

What practices can give rise to liability?

Based on the Abruzzo memo, employers should pay particular attention to the following practices that could pose a particular risk:

  • Track employee movements using GPS, wearable devices, security cameras, and radio frequency identification badges.
  • Monitoring employees’ work on computers using keyloggers and software that takes screenshots, webcam photos or audio recordings.
  • Tracking the location and communications of employees using employer-issued phones or handheld devices or apps installed on employees’ devices, including employees’ personal cell phones or computers.
  • Record employee interviews.
  • Conducting personality tests prior to hiring or reviewing applicants’ social media accounts.
  • Using software with algorithms to screen or select applicants for employment or employees for promotion or disciplinary action.

The General Counsel is urging regional directors to send her any cases involving “intrusive or abusive electronic surveillance and algorithmic management” so she can identify potential test cases to support her push for increased enforcement. See also, New York City law mandating audits of employer automated decision-making systems.

consequences for employers

The Board has not yet adopted the General Counsel’s proposed standard for assessing the legality of an employer’s technology tools. However, employers should expect an increase in unfair labor practice charges related to their use of technology. Employers should therefore be prepared to determine legitimate business needs for various electronic tools and carefully consider the implications of using seemingly routine technologies to monitor their workforce. These reviews should include assessments of any algorithmic decision-making tools used to screen or hire employees, or to make decisions about promotions, pay, or disciplinary action to ensure protected activities are not inadvertently considered.

Employers with questions or concerns should contact one of our employment and/or artificial intelligence attorneys for assistance.

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