Please ensure Javascript is enabled for purposes of website accessibility
Home / VA Business Law Bulletin / Restrictions on electronic surveillance by employers sought

Restrictions on electronic surveillance by employers sought

In a recent memo, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo called for limits on electronic monitoring and automated management practices by employers.

The memo describes various technologies that are increasingly being used to closely monitor and manage employees.

According to the memo, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices.

The document also states that some employers monitor employees’ computers with programs to record keystrokes and software that takes screenshots, webcam photos, or audio recordings throughout the day.

Abruzzo said that employers may use this data to manage productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday.

“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity — and to keep that activity confidential from their employer,” said Abruzzo. “Thus, I plan to urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”

New framework proposed

In the memo, Abruzzo states that she will urge the NLRB to adopt a new framework for protecting employees from employers’ abuse of technology.

The new framework would presume that an employer has violated the Act if their 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.”

If the employer’s business need outweighs employees’ Section 7 rights, the general counsel will urge the Board to require the employer to disclose which technologies it uses to monitor and manage employees, the reasons for the monitoring, and how it is using the information it obtains. An employer will have to meet these requirements, unless it demonstrates that special circumstances require covert use of the technologies.

The memo states that the general counsel remains committed to an interagency approach to these matters. She recently signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor intended to facilitate the sharing of information and coordinated enforcement.

Open questions

The memo leaves several open questions for employers.

First, it is unclear whether the NLRB adopt the general counsel’s proposed framework.

The memo doesn’t explain exactly what technologies Abruzzo would target, and in what situations.

It also doesn’t define how employers can narrowly tailor their electronic surveillance activities to address legitimate business needs and protecting their employees’ rights at the same time.

As a result of this memo, employers should consider reviewing their electronic surveillance practices and be sure they are in compliance with federal and state laws.