Wednesday, January 4, 2023

NLRB, Privacy, and Electronic Surveillance

NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices - you can read the memo here

Advances in technology, and the proliferation of remote work tools have led to a ton of employer electronic surveillance:

For instance, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices.  And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.

For the most part, employers may monitor their employees for productivity, attendance, etc. Surveillance does, however, present a few NLRA concerns. 

For example, as the memo notes:

Not official use.

  • Photographing employees engaged in protected activity (e.g., picketing, handbilling) may chill such activity. Such surveillance may violate the NLRA "absent proper justification."
  • "[I]t is well established that an employer violates Section 8(a)(1) if it institutes new monitoring technologies in response to activity protected by Section 7; utilizes technologies already in place for the purpose of discovering that activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things."
  • Employers may not discipline or terminate employees who engage in protected concerted activity to protest surveillance. 
So, what's new? Well, the NLRB General Counsel is recommending a new framework with two main components:

1. The employer would presumptively violate the NLRA 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 activity protected by the Act." The employer then bears the burden of establishing "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." Even then, the NLRB would still "balance the respective interests of the employer and the employees to determine whether the Act permits the employer’s practices."

2. If the employer somehow runs the gauntlet in No. 1, then it would still be required to disclose "the technologies it uses to monitor and manage [the employees], its reasons for doing so, and how it is using the information it obtains" (unless the employer shows that "special circumstances require covert use of the technologies"). 

Is this one of the NLRB's New Year's resolutions? I guess we'll find out soon enough.

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