As administrations change, so do the areas of focus and emphasis for NLRB General Counsels.  With the previous administration, the focus appeared to be on loosening the restrictions on employers when it came to becoming involved in organizing campaigns and allowing greater restrictions on protected activity in the workplace.  With the Biden administration, it is clear that employee rights are being expanded, and the protections for employees are being enhanced incrementally over time.

In her latest memorandum General Counsel (GC) Jennifer Abruzzo reviewed the protections already in place for employees with regard to employer monitoring of employee movement and activities, and the current “algorithmic management” of employees.  The guidance is directed at employers who utilize technology to track the movements and conversations of employees utilizing wearable devices, security cameras, and radio frequency identification badges.  The GC noted that after a work shift is over, “some employers continue to track employees’ whereabouts and communications using employer-issued phones or wearable devices, or apps installed on workers’ own devices,” and that some employers either sell that data or discipline employees based on the results of that data.

The GC then went through the various precedents pertaining to employers monitoring employee activities and possibly interfering with protected activity.  She included an interpretation of how current NLRB precedent might apply to such technologies. She stated that employers violate Section 8(a)(1) of the National Labor Relations Act (the Act) if they institute new monitoring technology in response to protected organizing activity or discovering that activity, and also violate the Act if they use current technology to observe the activity, “or create the impression that it is doing such things.”  There are several more situations that could lead to a finding of a violation, but the general message is that if employers utilize technology to observe or punish employees for union activities, they could be found in violation of the Act.

This all led to the GC’s urging of the NLRB to “adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity.”  Because employees have a right to keep their union activities confidential, there is a fear from the GC that continued monitoring may interfere with employee abilities to discuss workplace issues and possible organizing activities.  “Close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” she wrote.  She stressed that employer need to electronically monitor and direct employees must be balanced against employees’ rights under the Act, and urged that the Board presume a violation when “the employer’s surveillance and management practices…would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”

As a result, employers should consider reviewing their policies and efforts to monitor employee performance to ensure they are not infringing on the rights of their employees to be free from perceived observation.  This includes warnings to employees and practices with regard to employee e-mail monitoring and review, if employees are allowed to utilize employer e-mail or messaging devices for personal purposes, and improper use of camera surveillance in the workplace.

It appears the General Counsel, and eventually the NLRB, will be taking a VERY hard look at these tracking measures to determine if they impact concerted activity.  If you, or your organization, need assistance in making sure your technology and employee monitoring are consistent with the most current guidance, contact Wiley Reber Law, for labor advice that works.