NLRB General Counsel Takes Aim at Electronic Employee Monitoring and Management

November 18, 2022

Olivia Hariharan Godt and Kristin Bremer Moore - Tonkon Torp LLP

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The NLRB’s lead attorney recently issued a memorandum about employee monitoring and algorithmic management. In it, the General Counsel vows to “vigorously” enforce existing law to protect worker’s Section 7 rights in the face of heightened electronic monitoring and management.

Before summarizing the NLRB memorandum, there are a couple key terms to know:

• Section 7 protects an employee’s right to self-organize; form, join, or assist unions; collectively bargain for changes in wages, working conditions, and other terms and conditions of employment; discuss employment terms and conditions with coworkers; and engage or refrain from engaging in other protected concerted activities. Importantly, both unionized and non-unionized workers have Section 7 rights.

• Employee monitoring and algorithmic management encompass a wide variety of technologies which allow employers to track and manage their employees. Some examples include: tracking employee movements using GPS or other methods, logging key strokes or mouse movements, taking screenshots of employee computers during the work day, and tracking employee breaks and productivity.

The memorandum highlights various types of employee monitoring that are already illegal under existing case law and then suggests a framework to analyze new monitoring and management technologies.

What is already illegal?

The memorandum lists several types of employee monitoring and management practices which are already illegal under current law:

• Photographing or videoing employees engaged in protected concerted activities without proper justification (such as meeting to discuss working conditions, picketing, leafleting, etc.)
• Instituting new monitoring technologies in response to protected activity
• Using existing technology to discover protected activity (for example, reviewing security camera footage or social media accounts to detect if employees are meeting to organize)
• Creating the impression that monitoring is being used to discover protected activity
• Disciplining employees for protesting workplace surveillance or work expectations based on algorithmic management
• Questioning employees to determine propensity to seek union representation
• Preventing employee conversations or isolating union supporters to prevent protected activity

How will current law be applied to new technologies?

The General Counsel proposed a new framework for analyzing employee monitoring and algorithmic management:

• An employer will have “presumptively violated” the law if the employer’s surveillance and management practices “would tend to interfere with or prevent a reasonable employee from engaging in” protected activity. Under this standard, the employer’s surveillance methods need not actually be applied in a manner that prevents protected activity nor must an employee’s Section 7 rights be infringed upon. Rather, the mere utilization of surveillance and management practices that could theoretically prevent an employee from engaging in protected activity may be deemed unlawful.

• If the employer can establish that the practices are “narrowly tailored” to address a “legitimate business need,” then the needs of the employer would be balanced against the rights of the employees. The practice is only “narrowly tailored” if the legitimate business need “cannot be met through means less damaging to employee rights.”

• If the business needs outweigh the employee’s rights, then the employer can continue monitoring if it discloses the use of the technology to employees, its reasons for monitoring, and how it uses the information.

What should employers do?

• Avoid surveillance or monitoring during break times, meal periods, or in non-work areas where protected activity and conversations are more likely to occur
• Avoid imposing a “breakneck pace” set by algorithmic monitoring that could prevent a worker from breaks with coworkers when they may engage in protected activity or conversations
• Avoid monitoring employees outside of work, including social media
• Ensure that monitoring and management is “narrowly tailored” to a legitimate business need
• Comply with wiretapping and similar laws disclosing the types of monitoring used, how they are used, and why they are used

Importantly, the NLRB is working with the Federal Trade Commission, Consumer Financial Protection Bureau, Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor, which are all coordinating efforts to prevent employers from violating federal law by employee monitoring and management.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions or concerns about electronic employee monitoring or management, please contact a member of our Labor & Employment Group.

About Tonkon Torp

Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses, and individuals throughout the Northwest. For more information, visit tonkon.com.