productivity

National Labor Relations Board General Counsel Jennifer A. Abruzzo has an announced her intention to seek new restrictions on electronic monitoring and algorithmic management of employees both remotely and in the workplace. In an October 31, 2022 General Counsel Memorandum, Abruzzo directed NLRB staff to apply the National Labor Relations Act to protect employees to the greatest extent possible in these areas. The scope of any new limitations on employers will depend on how the Labor Board decides future cases that the General Counsel’s Office chooses to prosecute.

Section 7 Rights

Section 7 of the National Labor Relations Act grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of these rights.

Though Section 7 doesn’t directly address electronic surveillance or the use of artificial intelligence or algorithms in managing employees, Abruzzo emphasizes that “It is the Board’s responsibility ‘to adapt the Act to changing patterns of industrial life.'”

According to the GC Memorandum, it is already legally established that employers violate the NLRA if they:

Institute new monitoring technologies in response to activity protected by Section 7;
Utilize technologies already in place for the purpose of discovering that activity; or
Create the impression of monitoring its employees for that purpose.

A New Framework

The General Counsel now implores the Board to adopt a new framework for protecting employees from “intrusive or abusive forms of electronic monitoring.” Without detailing what particular practices might be unlawful, the Memorandum references current practices such as:

recording workers’ conversations and tracking their movements using wearable devices, security cameras, and radio-frequency identification badges;
“keep[ing] tabs” on drivers using GPS tracking devices and cameras; and
monitoring employees who are working on computers using keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.

This new framework would find that an employer presumptively commits an unfair labor practice where its electronic surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. GC Abruzzo further urges the balancing of the effect of employer rules on “a reasonable employee who is in a position of economic vulnerability, taking into account the totality of the circumstances.”

Productivity vs. Employee Rights

The General Counsel’s Memorandum even casts doubt on employers’ use of software to encourage employees to work faster. She laments, “In the workplace, electronic surveillance and the breakneck pace of work set by automated systems may severely limit or completely prevent employees from engaging in protected conversations about unionization or terms and conditions of employment that are a necessary precursor to group action.”

In other words, it appears the General Counsel would go so far as to suggest that employees have a Section 7 right to have time to discuss unionization or their terms of employment while working. This view would likely shock many employers who have justifiably assumed they could expect employees commit themselves entirely to the job at hand during work time.

What This Means for Employers

Although the General Counsel can’t change the law herself, she has a significant role in determining what cases will be brought before the National Labor Relations Board, whose members can and do establish the law under the National Labor Relations Act. Moreover, employers may be found to violate the law based on practices that have never been challenged in the past, or even those that have previously been deemed lawful by the NLRB. Thus, the pronouncement of this new enforcement initiative should concern employers who engage in any form of electronic monitoring or algorithmic management of their employees.

Other than mentioning various technological capabilities, the General Counsel hasn’t expressly advised employers what practices she may challenge. All that is clear is that she seeks strong protections for employee privacy at the potential expense of employer productivity and profitability.

Employers that utilize computer algorithms, artificial intelligence, or electronic monitoring tools should review their use in light of this NLRB General Counsel Memorandum. Relevant considerations probably include whether the software or monitoring continues outside the office or working hours, whether any data are available to third parties, and the purposes the use of technology serves. But until the NLRB weighs in on more specific cases, it will be hard to predict the extent of the potential limitations and which factors will be most important in the Board’s analysis.

For more labor law insights and NLRB developments, follow Horton Law on LinkedIn and subscribe to our email newsletter.

FIFA’s World Cup 2018 begins today (as I’m writing this). Unfortunately, the United States did not make the field. However, FIFA just announced that North America (Canada, Mexico, and the U.S.) will host the World Cup in 2026.

Anyway, this is the biggest sporting competition on Earth. Nearly 3.5 billion viewers are expected to tune in to watch the World Cup. Despite their country’s absence, that includes more than 50 million Americans. And because the tournament is in Russia, most matches will take place during the normal workday in the U.S.

So, here’s the big questions: Should you let your employees watch the World Cup at work?

Let’s weigh some of the considerations.

Type of Workplace

This mostly comes down to “do employees have computers on their desks?” If so, they may have easy access to the World Cup matches. Plus, they probably also have a smartphone that would allow them to watch, though in miniature. Tablets, like iPads, offer a middle ground.

In those office settings, some employees will try to watch whether it’s allowed or not. Companies might be able to restrict access to the primary streaming sites (the World Cup will be on FOX and FS1 in the U.S.). But there will be workarounds.

Of course, there’s the option of expressly prohibiting the watching of sports at work. That may already be technically covered by a electronic communications policy. But, it will still be hard to monitor what people are doing on their personal devices throughout a large workplace.

On the other hand, if employees work in a factory, retail setting, or outside, their access to World Cup coverage will be more limited. There’s still the smartphone issue, but it’s harder to hold the phone while working with one’s hands. And these workplaces often raise greater safety concerns, probably necessitating more restrictions against distractions and use of non-work devices.

Can your employees still get the work done while watching soccer? Certainly, some will be able to have the World Cup matches on in the background while still performing their work tasks at a high level. Others, however, will probably become completely immersed in the matches and get no work done.

Even the risk of lost production doesn’t make this a no-brainer issue. Every workplace features daily downtime, whether scheduled or not. Employees get breaks. Or they are sitting around waiting on customers, vendors, co-workers. Or they stop in the halls to make small talk, catch up with colleagues, etc. For employees interested in the World Cup, some of this normal downtime will revolve around the tournament anyway.

Workforce Demographics

Some employees like soccer. Others don’t. On the whole, Americans watch soccer much less than the rest of the world. It’s convenient for many U.S. employers that our brand of football schedules most of its games, including the big one, on Sundays.

So, who is most likely to watch the World Cup? Without getting into statistics or unfairly stereotyping, let’s just assume it’s possible that in your workplace:

Men are more interested than women;
Younger employees are more interested than older ones; and
Immigrants are more interested than those born in the U.S.

Thus, banning (or attempting to ban) employees from watching the World Cup may disproportionately affect some categories of employees. (It could be these listed above, or other distinctions unique to your workforce.) Does that mean you can’t tell employees not to watch soccer at work? No. Or at least, probably not.

But do you let employees watch other non-work content at work? The Olympics? Big games featuring local teams? The Royal Wedding?

Make sure you’re not unreasonably discriminating against soccer and its fans.

Morale

All else being equal (and probably even if it’s not) happy employees are better than grumpy ones. Most employers can’t tolerate letting employees watch every match of the World Cup when they’re supposed to be working. (But, if they work in a sports bar or soccer-related industry, it could make sense.)

Still, if some employees who identify closely with a country in the World Cup want to get together in an empty conference room during their lunch hour to watch their team’s match, is it worth saying no? At the same time, will other employees complain when those soccer fans don’t return to their stations on time?

World Cup at Work

Each company will have to make its own decisions about whether to let employees watch the World Cup and other major world events at work. There’s no perfect one-size-fits-all solution. The goal (pun intended) is to optimize productivity and morale during an event that most of the world becomes obsessed with every four years.

For more about the tournament, go to FIFA’s website.

For more insights, updates, and best practices regarding employment law and the workplace, subscribe to our free email newsletter.

Tag: productivity

Will the NLRB Rein in Electronic Monitoring and Algorithmic Management of Employees?