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NLRB Takes Aim at All Employer Electronic Monitoring Regardless of Business Purpose

November 13, 2022

By Michael Burns, courtesy SBAM Approved Partner ASE

Employers can use a number of different methods of electronic monitoring in the workplace ostensibly to improve productivity and ensure security of the business. These methods can be:

  • Telephone monitoring for quality and efficiency while communicating with customers and clients.
  • Computer monitoring that measures keystroke efficiency and time spent at the computer terminal.
  • Internet blocking censorware that blocks access to certain internet sites to possibly prevent computer viruses from being downloaded from sketchy sites.
  • Video monitoring that takes pictures of individuals such as customers and workers to ensure security.
  • Tracking devices that show where an employee is while offsite or working in dangerous locations such as underground mines or in tunnels.

To spend money and time to implement these systems employers obviously recognize the need and value to their operations and so far, have had the right to unilaterally implement these forms of monitoring within their organization.

State law and the courts have recognized an employer’s right to operate their organization and secure their property by electronic and other methods of monitoring as long as it is reasonable and does not impinge on the employees’ expectation of privacy.  In an employer’s place of work this expectation of privacy (outside of restrooms and such) is normally set pretty low.  Employer policy on this practice normally notifies employees that there is no expectation of privacy on a company’s electronic equipment.

Last week the National Labor Relations Board’s (NLRB) General Counsel (GC) issued a memorandum to its Regional Offices and Management in effect changing this employer prerogative stating that employers using electronic tools in the workplace to track employee movement, record their conversations, or monitor their computer use will be scrutinized by the NLRB. If the practice is found to interfere with the employees’ rights to engage in protected concerted activities (Section 7) they will face unfair labor practice charges. The NLRB General Counsel states that employers violate workers’ rights when their use of monitoring tools “interfere or prevent a reasonable employee” from engaging in group activity as protected by the National Labor Relations Act (NLRA). This memo asks for its regional offices to watch for and submit cases that they believe may interfere with workers’ right to organize and collectively bargain.

The Center for Democratic Workforce (CDW) opines this move is a backdoor effort by the GC to “target gig economy companies and their algorithms to direct the independent contractors who provide services via their apps.”

The NLRB’s GC would propose to presume a violation of the law where the employer’s “surveillance and management practices, viewed as a whole [italic added], would tend to interfere with or prevent a reasonable employee from engaging in” say, meetings or discussions about organizing, promoting collective action about a term or condition of employment, or other activity or communication that could also be considered concerted activity toward organizing or involving terms and conditions of employment. This is a pretty broad swath of alleged employee concerns.  The GC Memo calls on the Board to act when a case of surveillance is deemed potentially breaching the NLRA. The analysis the NLRB will apply to “balance an employer justification for surveillance against the tendency of that conduct to interfere with employee’s right to engage in concerted activity.”

Most employers would not purchase security and monitoring equipment just to spy on potential union organizing activity. In most cases the electronic equipment is already there and was brought in for lawful security and productivity concerns. But the GC’s memo posits that a new framework of analysis around employer spying is needed to protect employees from any surveillance that may impinge or in the view of an employee impinge on the employee’s protected rights.

The GC Memo is proposing that it is the employer’s responsibility to prove this monitoring equipment does not or would not curtail employees’ right to organize and in doing so to be able to freely and without intimidation communicate with each other free from surveillance that they believe might be used against them. 

Without saying as much, this memo seeks to give the NLRB the right to challenge any monitoring activity with the presumption it is not legitimate. The employer will have to respond with legitimate business reasons for the workplace monitoring. This will allow the NLRB to in essence second guess the employer’s rationale and allow it to determine if it causes employees enough concern about being spied upon to warrant their intervention. All the employee has to do is allege the surveillance intimidates or causes them to fear for their employment. What union organizer would not use rationale as one more unfair labor practice to allege?

The NLRB is not working alone with imposing its new policy against employer monitoring and surveillance. It is also working in conjunction with the Federal Trade Commission, the Consumer Financial Protection Bureau, The Department of Justice, the Equal Employment Opportunity Commission, and the Department of Labor in challenging the use of technology in the workplace.

The pro-labor NLRB and its GC continues to restrict union and non-union employer business rules that it deems are impediments to union organizing giving union organizers an extensive set of reasons to bring labor charges against employers even when policies and practices have legitimate business purpose.

To protect against unwarranted labor charges employers and their supervisors and managers need to know and understand how current labor law is being interpreted and enforced.

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