Wednesday, November 2, 2022

If your surveilling employees, the NLRB is watching you

Wearable trackers. Security cameras. GPS trackers. Keyloggers. Live webcam monitoring. Technology has made it easier for employers to monitor and manage their employees' productivity and discipline employees who fall short of expectations. Moreover, technology makes it possible for employers to continue tracking employees after the workday ends via employer-issued cellphone or wearable devices, and apps installed in employees' own devices.  

Employers are monitoring employees, and the NLRB is monitoring employers' use of these monitoring technologies.

NLRB General Counsel Jennifer Abruzzo just issued a memo on Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

She urges the Board "to adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management … that do not unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights by stopping union and protected concerted activity in its tracks or preventing its initiation." 

Here's the money quote:

Close, constant surveillance and management through electronic means threaten employees' basic ability to exercise their rights. 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. If 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 or distribution of union literature during nonworking time. And surveillance reaching even beyond the workplace—or the use of technology that makes employees reasonably fear such far-reaching surveillance—may prevent employees from exercising their Section 7 rights anywhere. … [T]o the extent that employers have a legitimate need to electronically monitor and direct employees in ways that could inhibit Section 7 activity, the employer's interests must be balanced against employees' rights under the Act."

Thus, she proposes a burden-shifting test.

/1/ The Board should find that an employer has presumptively violated employees' rights to engage in protected concerted activity "where the employer's surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in such activity." 

/2/ The burden then shifts to the employer 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 employee rights.

/3/ If the employer's business needs outweigh the employees' Section 7 rights, Abruzzo urges the Board to require that the employer disclose to employees the nature of its monitoring technologies, its reasons for using them, and how it is using the information obtained. 

This test isn't law yet; it's only the opinion on the NLRB's hyper-liberal general counsel of what the law should be. But it likely will become law as soon as the NLRB gets the right case in front of it, which is good enough of a reason to pay very close attention to this issue. 

Conventional wisdom (with a certain left-coast state notwithstanding) is that if an employer owns a device, an employee has zero privacy rights in that device, its use, or the information stored on it, inside or outside of work. Nevertheless, even without a change in Board law, the notice and disclosure Aburzzo suggests in her memo is a sound and wise business practice. This issue raises a fundamental question of the type of employer you want to be and the type of relationship you want to foster with your employees. Do you want to be an employer that is open and honest with your employees, that operates on trust? Or do you want to be an employer that slinks around behind your employees' backs and breeds dishonesty and distrust? I know how I answer this question. How you answer it says a lot about who you are as an organization. 

Thus, while Abruzzo's memo and an impending change in NLRB law is a big legal issue, it shouldn't change how employers are managing their employees, if they are managing them the way they should be managed.