I Always Feel Like… My Boss is Watching Me!

Following similar movement by the Equal Employment Opportunity Commission (“EEOC”), which recently released guidance on the use of artificial intelligence by employers[1], National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo has released a new memorandum announcing her plan to address modern technology in the workplace.[2] Analogous to the EEOC, the General Counsel’s memo discusses the Agency’s fears regarding the potential use of modern technology in the workplace and addresses several ways that she believes that “omnipresent surveillance and other algorithmic-management tools interfere with the exercise of Section 7 rights.”[3] These terms are defined in the memo as “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.”[4]

For those unfamiliar with the reference, “Section 7” refers to Section 157 of the National Labor Relations Act (“NLRA”).[5] Section 7 grants employees covered by the NLRA “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” and the right “to refrain from any or all such activities.”[6] The General Counsel’s memo addresses the Agency’s concerns that many employees’ Section 7 rights have been, or soon will be, violated by the introduction of new technologies in the workplace. In a somewhat direct example, the General Counsel addresses the use of warehouse worker surveillance via the use of “wearable devices, security cameras, and radio-frequency identification badges” with the overarching concern being the impact that the use of these productivity tools could potentially have upon an employee’s ability to engage in protected activity confidentially.[7]

The memo outlines the Agency’s strategy moving forward and stresses that Regions (individual operational areas of the NLRB) should seek to enforce existing NLRB precedent in the context of new workplace technologies and requires the Regions to submit any Section 7 cases involving “intrusive or abusive electronic surveillance and algorithmic management” to the Division of Advice.[8] The general thrust of the memo outlines the General Counsel’s stance that the Board should presumptively determine that an employer has violated the NLRA if the employer’s use of technology “would tend to interfere with or prevent a reasonable employee from engaging” in protected activity.[9] If an employer can demonstrate that their use of surveillance technology is narrowly tailored to address a specific need, the memo recommends that the benefit of the technology to the employer should be balanced against the interests of the employee and that if the use survives this scrutiny, the Board should then require the employer “to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains.”[10] The General Counsel mentions that these are the minimum guidelines she seeks and foreshadows a potential need for additional safeguards or assurances.

While most of the memo will require Board action before it becomes law, one item will likely take effect immediately. Namely, the requirement that Regions include the following language in settlement agreements for matters that do not proceed to Board decision: “[t]he Charged Party will report to the U.S. Department of Labor, Office of Labor-Management Standards, via its Form LM-10, the amount of any payments or expenditures made in conjunction with the conduct at issue in this case.”[11] As employers have experienced during the General Counsel’s tenure, the Agency has increased its use of settlement agreements as vehicles of expanded enforcement, including the inclusion of automatic default language and additional reporting requirements. Employers will, however, have to wait and see if the Board will embrace the General Counsel’s stance on modern technology in the workplace and should expect further interpretation and guidance related to the same.

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1. https://www.jdsupra.com/legalnews/artificial-intelligence-and-the-8237106/
2. Employers should also be mindful of state and local laws which impact their use of electronic monitoring such as the semi-recent amendment to the New York Civil Rights Law which requires employers to notify employees of the existence of electronic monitoring and obtain employees’ written acknowledgement of the notification.
3. MEMORANDUM GC 23-02 (located at https://www.nlrb.gov/es/guidance/memos-research/general-counsel-memos).
4. Id.
5. 29 U.S.C. §§ 151–169.
6. 29 U.S.C. § 157.
7. GC 23-02.
8. Id.
9. Id.
10. Id.
11. Id.