Proposal Would Restrict Electronic Monitoring Nationwide

Allen Smith, J.D. By Allen Smith, J.D. November 2, 2022
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An employee at his computer

​A proposal by National Labor Relations Board General Counsel Jennifer Abruzzo to prevent union busting via employers that monitor employees electronically would apply to all companies, not just unionized ones. Already, a handful of states have some notice requirements for electronic monitoring.

"I plan to urge to the board, to the greatest extent possible, to apply the [National Labor Relations] Act to protect employees from intrusive or abusive electronic monitoring and automated management practices" that tend to interfere with rights under the law, she said.

Abruzzo will encourage the board to hold that an employer has presumptively violated the act when an employer's surveillance and management practices prevent an employee from engaging in activity protected by the act.

Unless the employer shows special circumstances requiring the covert use of technologies, Abruzzo will urge the board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so and how it is using the information it obtains.

Abruzzo is making employer use of electronic monitoring an enforcement priority, noted Jenn Betts, an attorney with Ogletree Deakins in Pittsburgh. The general counsel will look for a test case to create a new standard relating to the use of such technology.

Monitoring Is on the Rise

"It is well-documented that employers are increasingly using new technologies to closely monitor and manage employees," Abruzzo wrote in an Oct. 31 memo. In warehouses, some employers record workers' conversations and track their movements using wearable devices, security cameras and radio-frequency identification badges, she noted.

On the road, some employers keep tabs on drivers by using GPS tracking devices and cameras. Other employers monitor employees who work on computers—whether in call centers or offices or at home—using keyloggers and software that takes screenshots, webcam photos or audio recordings throughout the day, the memo added.

"I am mindful that some employers may have legitimate business reasons for using some forms of electronic monitoring and automated management," Abruzzo wrote. But employers' interests must be balanced against employees' rights under the act, she stated.

These rights include the right to self-organize and bargain collectively, encompassing the right to effectively communicate with one another about self-organization at the worksite, she stated in the memo. In addition, the confidentiality interests of employees give rise to a right to privacy "necessary to full and free exercise of the organizational rights guaranteed by the act," the memo added.

Abruzzo promised to urge the board to ensure that intrusive or abusive methods of electronic surveillance and automated management do not unlawfully interfere with employees "by stopping union and protected concerted activity in its tracks or preventing its initiation." Concerted activity may be undertaken by union or nonunion employees.

That said, monitoring of employee phone or e-mail communications can serve a host of purposes, including evaluating compliance with guidelines for the manner in which work is performed, evaluating productivity, and detecting or mitigating certain cybersecurity threats, noted Simone Francis, an attorney with Ogletree Deakins in New York City and St. Thomas, Virgin Islands. "Electronic monitoring is becoming commonplace for employers of all sizes," she said.

"I think the increase in monitoring results from a few factors," said Philip Gordon, an attorney with Littler in Denver.

"First, there have been news stories about fairly egregious conduct by remote workers, such as employees who are working a second job or working on a personal business while being paid by another employer," he said.

"Second, the general perception—perhaps misperception—that remote workers have more distractions and, therefore, need to be more closely monitored," Gordon added. "Third, the continuous drive of American businesses to increase profitability by increasing productivity."

He cautioned that "the new monitoring tools purport to provide methods—not always accurate—to quantify productivity." In addition, he noted that employers should keep in mind the potential negative impacts of too much monitoring on employees and the employment relationship.

Action Steps

"Importantly for employers—for those that decide to comply with this proposed standard rather than litigate it—this requires drafting of the internal justifications for their practices and that those practices are narrowly tailored to serve lawful operational reasons, all before a charge is filed," said Harry Johnson III, an attorney with Morgan Lewis in Los Angeles and former member of the board.

Security or productivity probably won't be enough for covert surveillance under this memo, said Allison Anderson, an attorney with Foley Hoag in Boston.

"To the extent this becomes the law, employers should consider making these disclosures in writing and ensuring sufficient detail is included to meet the standard articulated by the general counsel," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

State Law Requirements

Currently, three states regulate electronic monitoring, noted Linn Freedman, an attorney with Robinson & Cole in Providence, R.I.

New York's employee-monitoring law, which went into effect May 7, requires employers that engage in electronic monitoring—including monitoring e-mail, Internet use and audiovisual recording—to provide a written notice upon hiring to all employees subject to surveillance. Each employee must acknowledge the policy in writing or electronically, she noted. In addition, each employer must post a copy of the policy in a place that is readily available for viewing by workers, such as in a break room.

A conspicuous place might be on an intranet, Slack, Microsoft Teams or bulletin board, said Peter Glennon, an attorney with The Glennon Law Firm in Rochester, N.Y.

Connecticut and Delaware also require employers to provide notice of electronic monitoring, Francis said. "These laws are not onerous, but minor variations in the laws present the usual challenges for multistate employers to tailor practices to ensure compliance with the requirements of each jurisdiction in which they operate," she said.

In addition, in view of the fact that Ontario, Canada, also has enacted a law, multinational employers should be prepared to track requirements in the other countries where they have employees, Francis added.

"Keep an eye on this rapidly changing space," Freedman said.

Above all, "be transparent about the monitoring by providing employees with a robust notice before they are subject to monitoring," Gordon said.

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