January 1 Tip of the Week

“AI and the Workplace”

The introduction of more widely available types of artificial intelligence, such as ChatGPT and various AI based hiring tools, has sparked a lengthy discussion of how to handle these technologies in the workplace.  As we have noted previously, the EEOC has issued guidance regarding the use of AI-based hiring and recruitment tools due to the concerns that the decisions of these systems are subject to bias and more likely to result in discriminatory hiring practices.  The National Labor Relations Board has also weighed in on the use of artificial intelligence in the workplace. 

            In addressing the use of AI in the workplace, the NLRB has largely focused on the impact of these AI systems on employee surveillance and how that might deter employees from engaging in collective and/or union organizing activity.  Memorandum GC 23-02 was issued by the General Counsel on October 31, 2022 and addressed the use of technological devices to monitor and manage employee activity and employee productivity.  Think of the GPS systems that are used for delivery drivers, bus operators, and other workers who are engaged in offsite activities.  Other examples of these types of technological surveillance measures include keylogging software, webcams, and other devices that can be used to monitor workplace activities. 

In expressing concerns over how these technologies can be used, the NLRB General Counsel has indicated that the agency will be applying settled labor law principles in determining whether the use of the technology violates an employee’s Section 7 rights.  The General Counsel has stated that there should be presumption that an employer’s use of surveillance and management practices violates the law if, viewed as a whole, they would tend to interfere with an employee’s organizing or collective activities.  The General Counsel Memo can be found here:  https://aboutblaw.com/5wJ.  The approach to these types of surveillance activities is quite broad and the General Counsel is encouraging the Board to find violations of the law even in situations where the technologies are not used to surveil or otherwise monitor employees, but leave the impression that such monitoring activities are occurring. 

To address these concerns, the General Counsel is urging the Board to balance the employer’s interest in monitoring employees using these technologies with the employee’s right to both privacy and collective activity in the workplace.  The General Counsel is also urging the Board to require employers to notify their employees of the use of these technologies to allow employees to understand and balance the risks of collective activity in the workplace in light of the employer’s use of monitoring systems. 

This memorandum and approach to the use of AI to monitor employees is another indication of the need for employers to be cautious in how they handle employee organizing issues.  They are also a reminder that employees have a right to privacy in the workplace.  Just as an employer cannot review an employee’s or applicant’s use of social media when making hiring decisions, it cannot monitor an employee’s conduct at work or on the computer to determine whether an employee is engaging in pro-union behavior.  If you have questions or concerns about employee union activity and how to legally respond to that activity, myHRcounsel can assist you in addressing those concerns.