Electronic Monitoring and Algorithmic Management

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

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.

 

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