Electronic management tools targeted as potentially illegal workplace surveillance
The General Counsel of the National Labor Relations Board recently issued another General Counsel’s Memorandum to announce her next litigation target. Memorandum GC 23-02, issued October 31, 2022, takes aim at electronic monitoring and “algorithmic management of employees.” Employers must remember that issues like this apply to both unionized and non-union workforces under Section 7 of the National Labor Relations Act.
The Memo takes a broad approach to “algorithmic” or “automated” management of employees, stating that these terms apply to “’a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.’” The General Counsel states that her concern is the potential for “omnipresent surveillance.”
Section 7 provides employees with the right to form labor unions and to engage in other concerted activities for the purpose of mutual aid or protection. Section 7 rights broadly protect employees in joining together to unionize, as well as to address many workplace issues, such as pay, changes in benefits, workplace safety, and other conditions of employment. Protected concerted activity includes employees speaking amongst themselves about these work topics, as well as bringing issues to the attention of their employer in requests or complaints.
The intersection of Section 7 rights and advanced technology
In this Memo, the General Counsel seeks to apply the Section 7 rights to address developments in technology that permit employers to monitor and manage employees. Some of the technologies and their application that are discussed in the Memo include recording workplace conversations, tracking employee movements with wearable devices, security cameras, and radio-frequency identification badges, GPS tracking devices and cameras, keyloggers, and software that takes screenshots, webcam photos or audio recordings throughout the workday.
The General Counsel states that advances in artificial intelligence and algorithm-based decision-making make it possible for employers to analyze and act on volumes of data from the new technologies. This data many make it possible for an employer to manage employee productivity and address deficient performance via specific directives during the workday or in disciplinary actions.
The Board has in the past applied Section 7 to scrutinize employers photographing employee meetings during union organizing campaigns. The Board refers to this as employer surveillance that has a “tendency … to interfere with employees’ rights to engage in concerted activity,” i.e. organizing to form a labor union.
Balancing employer and employee rights
While the Memo does state that the General Counsel recognizes an employer’s right to legitimately monitor and direct employees in their work, the General Counsel asserts that such legitimate business interests “must be balanced against employees’ rights under the (NLRA).” The Memo states that “it is up to the Board to work out an ‘adjustment’ between the interests of management and labor that guarantees employees a meaningful ‘opportunity to organize.’” The General Counsel’s Memo puts employers on notice that the General Counsel intends to bring cases to apply Section 7 to any sort of new technology that might be considered a type of workplace surveillance.
The fact that the surveillance may be unseen and operating in the background will not prevent the General Counsel from pursuing an unfair labor practice charge against an employer for infringing on employees’ Section 7 rights. To the extent that an employer may using or considering implementing a technology of this sort, an employer would be wise to consider how to do so within the framework of the General Counsel Memo to try to avoid being in front of the NLRB.