NLRB Voices Concerns About Electronic Surveillance and Automated Management Practices

By M. Scott McIntyre and Sean P. Ryan © Baker & Hostetler November 29, 2022

​The National Labor Relations Board's general counsel, Jennifer Abruzzo, recently issued a memorandum for employers that sets out to restrict the "omnipresent surveillance" of employees in the advent of work at home culture.

Abruzzo specifically identifies GPS tracking, video surveillance and key loggers as potential concerns.

Employers must always be careful when engaging in employee surveillance, and the NLRB's memo gives employers yet more reason to be careful.

The Oct. 31 memo equates automated managing software and artificial intelligence (AI) to surveillance software. Abruzzo identified these surveillance technologies as potentially interfering with employees' Section 7 rights. Section 7 of the National Labor Relations Act states that employees have "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection." An employer might impinge on those rights when it uses technology to surveil such activities. Abruzzo's memo stands as a warning about how technology may interfere with these rights even if no intent to do so is present. The memo notes that key logging and other automated management software is a potential concern.

All employers, particularly those with remote employees and employees who travel for work, have an interest in ensuring that their employees are actually working. This is particularly relevant in the work from home culture where managers are not physically present to ensure employees are working when they say they are.

The memo, however, warns about using surveillance software so strictly. The NLRB cautions that this software cannot set such a "breakneck pace" that an employee is "severely limited or completely prevented" from engaging in protected activities. Of course, the memo does not specify what such a "breakneck pace" would be. "Constant surveillance" may be considered a problem, as well, because employees may not engage in protected activities if they are always being watched.

The NLRB found that off-the-clock surveillance can create Section 7 issues. Abruzzo noted that work-issued phones and wearable devices have been used to track employees after hours and that employees have been required to download apps on their own phones, which track their after-work activities. All of these could cause potential Section 7 issues in the NLRB's view.

The NLRB troublingly did not identify "intent" as a significant factor for whether Section 7 is violated in this context or not. An employer thus potentially could have passive tracking on a work-issued phone or device only to find that this violates Section 7 under the NLRB's view.

Finally, the NLRB also discussed AI and the role it may play in employee surveillance. While an employer may think that an AI cannot be found to target employees based on Section 7 rights, the NLRB disagrees. The board has determined that if an AI tool targets an employee's Section 7 rights, the employer may be liable. Again, intent is not a factor, merely the outcome.

From the NLRB's perspective, "if employers rely on artificial intelligence to screen job applicants or issue discipline, the employer—as well as a third-party software provider—may violate Section 8(a)(3) if the underlying algorithm is making decisions based on employees' protected activity." In short, employers should work with counsel before relying on such a system.

Employers should always engage with counsel before enacting any company-wide surveillance policies to ensure it does not run afoul of Section 7 or the myriad of other laws in this area, in addition to common law claims.

M. Scott McIntyre and Sean P. Ryan are attorneys with Baker & Hostetler in Cincinnati. © 2022. All rights reserved. Reprinted with permission via Lexology.



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