By: Jennifer L. Mora and Cary Burke
On October 31, 2022, National Labor Relations Board (“NLRB” or “Board”) General Counsel Jennifer A. Abruzzo issued Memorandum GC 23-02, wherein the General Counsel announced her intention to “protect employees” from what she describes as “intrusive or abusive” and “omnipresent” electronic monitoring and algorithmic-driven management practices that might interfere with employees’ Section 7 rights under the National Labor Relations Act (“NLRA” or “Act”). To do this, the General Counsel explains that she will both “vigorously enforce extant law,” and urge the Board to apply current law “in new ways.”
Current Board law already addresses certain types of surveillance and management technologies. For instance, in cases where an employer observes open protected concerted activity and public union activity, such as hand billing or picketing, the Board has recognized that “pictorial recordkeeping tends to create fear among employees of future reprisals.” It also is well established that an employer violates the Act if it rolls out new monitoring technologies in response to Section 7 activities or uses existing technologies to discover protected concerted activities.
The goal of the Memorandum is to look beyond these traditional methods of surveillance and monitoring and stay ahead of recent technological advances, including the use of artificial intelligence, algorithm-based decision-making, and surveillance during break times and in non-work areas. On the latter point, the General Counsel commented that “[i]f the surveillance extends to break times and nonwork areas, or if excessive workloads prevent workers from taking their breaks together or at all, they may be unable to engage in solicitation and distribution of union literature during nonworking time.”
To accomplish this goal, the General Counsel proposes an amorphous burden-shifting “framework” where an employer will be found to have presumptively violated the Act where its “surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee in engaging in activity protected by the Act.” In defense, the employer would be forced to establish that the practice at issue is narrowly tailored to address a legitimate business need or, in the words of the General Counsel, “that its need cannot be met through means less damaging to employee rights.”
Forebodingly, even where the employer can meet its burden, the General Counsel will still request that the Board engage in an undefined “balancing test” pitting the employer’s right to manage its business as it sees fit against an employee’s ability to exercise their Section 7 rights. Should this proposed balancing test ultimately tip in favor of the employer, the General Counsel would still request that the employer be forced to disclose to employees 1) the technology in use; 2) the employer’s reasons for using the technology; and 3) “how it is using the information it obtains.” Without that information, the General Counsel posits, employees cannot “intelligently exercise their Section 7 rights.”
Ultimately, this proposed framework appears to place the onus on employers to justify their use of routine workforce management technology, such as monitoring employee work rates, using surveillance cameras as a loss prevention tool, or using GPS tracking devices and cameras to monitor drivers. To the extent they cannot do so to the General Counsel’s satisfaction, this sort of typical 21st century employer practice could very well be deemed unlawful.
It bears noting, too, that the General Counsel buried a Halloween scare in the footnotes. Therein, the General Counsel instructs Regions to require employers to report expenditures on electronic management technology to the U.S. Department of Labor’s Office of Labor-Management Standards under Form LM-10 as part of any settlement of such charges.
Given the breadth of the routine employer actions that this memorandum targets, employers would do well to seriously consider whether, when, and how they employ electronic management technology in their workplaces. Employers with questions should reach out to their labor counsel for assistance.