New England Biz Law Update
The National Labor Relations Board (NLRB) is targeting one of the most contested trends in the workplace: employee monitoring.
In October, NLRB General Counsel Jennifer Abruzzo asked the NLRB to apply Section 7 of the National Labor Relations Act to employee monitoring. If adopted, the agency’s lawyers would use this section — which allows employees to discuss their rights, collectively bargain, and organize in the workplace — to fight against unlawful monitoring on the grounds that it infringes on these Section 7 rights.
However, if a business can prove it has “special circumstances” for using surveillance, Abruzzo is asking the board to fight for disclosure to employees.
“Thus, I plan to urge the Board to apply the Act to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights,” the memo states.
The memo made waves, but employment legal experts note some important clarifications.
Doug Christensen, a shareholder at Littler Mendelson who specializes in management law, explained that this move does not change current law; rather, it applies Abruzzo’s interpretation of the law. Likewise, Charlotte Garden, an expert on labor law and a professor at the University of Minnesota Law School, explained this memo outlines “litigation priorities” for the NLRB.
Still, labor attorneys, such as Emily Marshall of Miller O’Brien Jensen and Brendan Cummins, a partner at Cummins & Cummins, see this memo as movement in the right direction.
“It’s a big deal because retaliation … in the workplace is a reality,” Marshall said regarding the memo’s implications. “Employees have a right to not be intimidated into not having those important conversations with co-workers and [the] public about wages and working conditions. If there is a system that chills their ability to have those conversations, either on or off premises, that kind of system is presumptively illegal.”
The NLRB also stated its intent to specifically target new artificial intelligence (AI) tracking systems. The data collected through AI is analyzed by companies to set productivity expectations that many employees find impossible to meet, Cummins explained.
That’s why Cummins finds the disclosure element of the memo encouraging.
“It’s the difference between Big Brother watching you and Big Brother watching you secretly with no way of you knowing and no way of reacting to it,” Cummins said. “And it’s being used against you without you being aware.”
Similarly, Garden said disclosure is the “second-best” option if an employer can prove their surveillance meets a business need.
But there is a potential loophole to consider, Garden cautioned.
“Of course, the risk with any disclosure regime is that employees won’t really notice it,” Garden said. “… If it’s a form that doesn’t have airing on my day-to-day work environment, especially if it’s something that you get when you first get a new job, you might not focus on a disclosure about surveillance. Not everyone reads the employee handbook cover to cover.”
As for the management side, Christensen said closely watching how the situation unfolds is the best practice for employers and their legal counsel. Because the memo does not change the law so much as it provides an outline for fighting against surveillance, Christensen explained that nothing changes for employers.
However, he did encourage employers and their legal teams to verify that all of their surveillance measures comply with current laws in their jurisdictions, and to prepare to explain their decisions.
“They should also be able to explain the business reasons, and make sure that if they are [monitoring] that they are complying with those laws,” Christensen said, adding that the prevalence of remote work has made employee surveillance a greater necessity than in the past.
While legal counsel for employers monitor the NLRB’s announcement, Christensen emphasized that any real change in how the law is interpreted may not occur for a “relatively lengthy period” due to potential legal challenges and political moves. For instance, Abruzzo would likely be removed as general counsel of the NLRB if a Republican is elected as U.S. president in 2024, Christensen said.
As businesses prepare, labor attorneys remain hopeful that this announcement by the NLRB will create a new trend — one that protects the workers they represent without preventing employers from using legitimate business practices.
“I think this is a modest but sensible reaction to the development of employee monitoring technology that can be both hard to detect and fairly totalizing,” Garden said. “So, I think this memo, if adopted by the board, wouldn’t prevent the use of employer surveillance technology, but it would put up some guardrails up.”
