Monday, June 6, 2022

Surveilling your employee’s online activity to out union supporters is illegal … like, really, really illegal

Elon Musk. The name itself evokes a visceral reaction. Electric car visionary. Astronaut wannabe. Opponent of remote work. Potential Twitter owner. Failed SNL host. 

And, according to CNBC, Musk is also a spy, illegally surveilling his employees' online activities during a 2017 and 2018 union organizing drive at one of Tesla's factories.
In 2017 and 2018, as some workers sought to form a union at the Tesla factory in Fremont, California, Elon Musk's electric vehicle company was paying a consultancy, MWW PR, to monitor employees in a Facebook group and more broadly on social media, according to invoices and other documents reviewed by CNBC.

The records show that Tesla paid MWW PR to monitor a Tesla employee Facebook group, monitor Facebook more broadly for commentary on organizing efforts, and to conduct research specifically on organizers, going on to develop labor communication plans, media lists, and pitches based on their reconnaissance.

The NLRB defines "spying" as "doing something out of the ordinary to observe the activity." An employer who spies on employees' union activities unlawfully interferes with their right to unionize under section 8(a)(1) of the National Labor Relations Act. If an employer acts on that spying and fires or takes another adverse action against a union supporter, that employer also violates section 8(a)(3) of the NLRA, which prohibits discriminating against employees because of their union activities or sympathies.

There are lots of reasons why you might want to keep an eye on your employees' online activities — illegal harassment or discrimination and breaches of confidential information, to name two. But there's no good reason to spy on employees during a union drive unless you intend to act on said surveillance and retaliate against your pro-union employees. Watching for union support among employees during an organizing campaign is flat out illegal, and could get your company in hot water with the NLRB. 

Or, to put it another way, don't be like Elon Musk.