NLRB Issues New Guidance Impacting All Employers Using Electronic Monitoring or Surveillance

A memorandum has been issued by Jennifer Abruzzo, the General Counsel of the National Labor Relations Board (NLRB), that will affect the way employers use electronic surveillance and monitoring of employees.

Currently employers can set up equipment to record employee keystrokes, take webcam photos and screenshots, record conversations, and track employee whereabouts with GPS technology, in addition to many other technological forms of monitoring employees.   Abruzzo avers that current NRLB regulations render many of these practices unlawful, as electronic monitoring has a demonstrated chilling effect on protected activities such as organizing, picketing, and handbilling.  Abruzzo identifies an employer’s failure to bargain with union employees for the right to implement electronic surveillance and use electronic data as another violation of the National Labor Relations Act (NLRA).

Abruzzo also takes aim at employers using artificial intelligence to screen job applicants and discipline employees or apply production quotas or efficiency standards to terminate union supporters.  This comes on the heels of New York City’s recent ordinance requiring bias audits of artificial intelligence in the hiring process.  Employers must now beware that any facet of artificial intelligence used in job screening, anywhere in the US, that produces any type of unfavorable result toward potential union sympathizers, violates the NLRA and will result in charges against the employer.

Electronically monitoring employees without a valid, demonstrable, business reason, using electronic surveillance during employee meal and break periods, and using quota systems or automated work-setting systems that set a pace making it impossible to take breaks are all under fire under the new guidance.  The NLRB will balance the employees’ right to concerted activity against the employer’s legitimate business reason for using the electronic monitoring and automated management.

Employers must review all of the electronic monitoring and surveillance systems and automated work management systems they are currently using and put them to the test.  Are they truly necessary to achieve a legitimate business purpose? Can you identify how that purpose outweighs your employees’ right to concerted activity under the NLRA?  Employers who choose not to heed the NLRA’s most recent guidance may find themselves charged by a newly aggressive NLRB and facing the consequences.