NLRB Top Lawyer Announces Intent to Protect Employees From “Intrusive or Abusive” Electronic Monitoring

By Meaghan E. Murphy - Skoler, Abbott & Presser, P.C.

January 6, 2023

There is no doubt that technology has revolutionized the workplace and improved business operations and efficiency. The rise of remote work during the COVID-19 pandemic has made certain technologies, such as automated management systems and other electronic surveillance, even more attractive to employers seeking to maintain efficient business operations and manage remote workers. The National Labor Relations Board’s General Counsel, Jennifer Abruzzo (Abruzzo), recently announced her intention to crack down on employers’ use of such technologies based on her belief that it may violate the National Labor Relations Act (NLRA). Employers using electronic management technologies of any kind should pay attention to avoid violating the NLRA by using these tools improperly or failing to disclose their use and purpose.

Employee Rights Under the NLRA

The NLRA is a federal law that provides both union and non-union employees with the right, among other things, to engage in protected concerted activity related to their employment. Protected concerted activity includes union campaigns, but it also includes employees acting together to address their wages, benefits or other working conditions. For example, two employees communicating over company email or an internal messaging system about what they perceive as low wages or lousy benefits is generally protected activity under the NLRA.

The General Counsel’s Proposed Standard

In a Memorandum issued on October 31, 2022, Abruzzo expressed concern that surveillance and management through electronic means may significantly impair or negate employees’ ability to engage in such protected activity and keep it confidential from their employers. The Memorandum asks the National Labor Relations Board (Board), which is the body that decides whether there was a violation of the NLRA, to apply the law to protect employees “to the greatest extent possible, from intrusive or abusive” electronic monitoring practices. Specifically, Abruzzo urges the Board to adopt a new proposed framework to hold employers accountable for use of “omnipresent surveillance” and other “automated management” or “algorithmic management tools” that might impair employees’ exercise of their NLRA rights.

What do the terms “automated management” or “algorithmic management” mean? According to the Memorandum, those terms refer to “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.” The Memorandum also refers to specific tools employers use to surveil or manage employees from a distance: GPS tracking devices, cameras, wearable devices, radio-frequency identification badges, keyloggers and other monitoring software, phones or other devices with tracking capability, and artificial intelligence and algorithm-based decision-making tools, such as applicant personality tests. Employers should treat the specific tools referred to in the Memorandum as illustrative, not exhaustive.

Abruzzo set forth a burden-shifting framework for evaluating electronic management technologies similar to the framework the Board applies to other types of cases. Under the new framework proposed by Abruzzo, an employer would presumptively violate the NLRA where its surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in protected activity. To overcome that presumption, an employer would need to establish that the practices at issue are narrowly tailored to address a legitimate business need (i.e., that its need cannot be met through means less damaging to employees’ rights). If the employer can do that, then the Board would need to balance the respective interests of the employer and the employees to determine whether the NLRA permits the employer’s practices. But that’s not the end of the analysis. Even if the employer succeeds in meeting this high bar, the Memorandum provides that the Board may order that the employer disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains, unless the employer can demonstrate that special circumstances require covert use. According to Abruzzo, only when employees are armed with that information can they “intelligently exercise their [] rights and take appropriate measures to protect the confidentiality of their protected activity if they so choose.”

The scope and tone of the Memorandum indicates that Abruzzo believes many electronic management systems in use currently interfere with employees’ NLRA rights. The burden under the standard set forth in the Memorandum is heavy, and, if the Board adopts that standard, will inevitably fall mostly on employers. The likely outcome is that employers will more often find themselves on the wrong side of these cases.

Interagency Approach

The Memorandum also notes that Abruzzo is committed to an interagency approach to these issues, with numerous agencies across the federal government working to prevent employers from violating federal law using electronic surveillance and algorithmic management technologies. Abruzzo has recently signed agreements with the Federal Trade Commission, Department of Justice, and the Department of Labor which she claims will facilitate information sharing and coordinated enforcement on these issues.

Employer Takeaways

Abruzzo is the General Counsel for the Board; she does not have the authority to unilaterally change the law or to decide cases. The standard for evaluating the legality of electronic management tools that Abruzzo urges the Board to adopt in her Memorandum is merely a proposal. It does not become law unless the Board affirmatively adopts it. Nevertheless, Abruzzo makes clear her intent to bring complaints against employers for conduct that she believes violates the NLRA in an effort to give the Board the opportunity to consider, and ultimately adopt, her proposed standard. As a result, employers should comply with existing law regarding unlawful surveillance, be prepared to explain the business reasons for their use of any electronic management tools, and educate themselves on any state or local laws implicated by these same issues.

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