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Contact the National Labor Relations Board – specifically the Board’s General Counsel.
The timing of yesterday’s announcement of her new memo on how to maximize employee protection from intrusive or abusive electronic surveillance and automated administrative practices was **boss kiss**
It came shortly after I announced the next edition of The Employer Handbook Zoom Office Happy Hour on Friday, November 4, 2022 at noon ET. Along with a team of cyber risk, privacy and data security advocates from FisherBroyles, we will present
Cybersecurity 101 for HR professionals and employment lawyers.
Click here (https://bit.ly/Cyber4HR) to register.
But now let’s talk about the GC memo. From the press release:
The memo describes various technologies that are increasingly being used to closely monitor and manage employees. For example, some employers record workers’ conversations and track their movements with handheld 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 can use this data to manage employee productivity, including disciplining employees who do not meet quotas, penalizing employees for taking vacation time, and providing individualized instruction throughout the workday.
That last sentence suggests that there are situations where companies have legitimate business interests in using technology to monitor and manage employees. However, the GC is concerned that companies could use these technologies to discourage employees from exercising their right to organize and form a union. We call these Section 7 rights and they exist in unionized and non-union workplaces.
And while that thought probably hasn’t occurred to the 95% of you reading this post, the GC will urge the Board to adopt a new framework to protect workers from employer abuse of technology by stating that an employer is alleged to have violated the technology of the National Labor Relations Act when, taken as a whole, an employer’s supervisory and management practices would tend to prevent a reasonable worker from engaging in activities protected by the law.
Read the last part carefully. The intention of the employer will not count for much.
But even if the employer’s business needs outweigh the rights of employees under Section 7, unless the employer demonstrates that special circumstances require covert use of the technologies, it will request the board to require the employer to use the technologies it used to monitor and manage them, disclose to workers their reasons for doing so and how they use the information obtained.
While this isn’t a rule yet, it could be soon. And if this becomes the norm, add this to your employee handbook 2023 updates list.
The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.
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