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Electronic Worker Tracking in NLRB Top Lawyer’s Crosshairs (1)

Oct. 31, 2022, 4:30 PMUpdated: Oct. 31, 2022, 6:37 PM

The National Labor Relations Board’s top lawyer announced her focus on electronic monitoring and algorithm-driven management, saying she’ll advocate for a new legal framework to protect workers’ rights under federal labor law from abuse of workplace technologies.

NLRB General Counsel Jennifer Abruzzo said in a memo Monday that she’ll urge the board to set a standard making employer surveillance or management practices an unfair labor practice if they would tend to interfere with engaging in union organizing or other activities protected by labor law.

“Close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” Abruzzo said in the memo.

VIDEO: Union Busting: What Employers Can and Cannot Legally Do

Some types of technology-enabled surveillance and management is already illegal under settled NLRB law, Abruzzo said. For example, an employer violates the law if it institutes new tracking technology in response to worker actions that are protected by the National Labor Relations Act, she said.

Abruzzo’s memo marks an attempt to specifically address changes to the modern workplace made possible by advanced tracking tools and computer-assisted data analysis. It follows initiatives by the Equal Employment Opportunity Commission and New York City to combat bias in hiring decisions made by artificial intelligence programs.

‘Omnipresent Surveillance’

Abruzzo said she’s especially worried about “the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.”

Section 7 of the NLRA safeguards workers’ rights to band together to improve job conditions and protect one another.

Some employers use technology to record workers’ conversations and track their movements, Abruzzo said. This surveillance is conducted in and outside the workplace through wearable devices, security cameras, on-vehicle tracking tools, investigation of social media accounts, and smartphone applications. It also happens through workers’ computers via keystroke logging, webcam photos, and audio recordings, she said.

Employers can analyze, sell, and share worker data harvested from electronic monitoring thanks to advances in artificial intelligence and decisions made through computer algorithms, Abruzzo said.

“Some employers use that data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday,” she added.

New Framework

While Abruzzo pledged to vigorously police potential abuse of technology under existing law, she proposed a new legal framework to bring the law up to speed with changing patterns in the workplace.

To become law, the NLRB would need to embrace her plan in a decision in an individual case dealing with electronic surveillance or management.

The standard proposed in her memo—tying the legality of the practice to whether it would curb labor law rights—is consistent with the approach she sought to replace the Trump-era framework for judging the legality of facially neutral work rules that could interfere with workers’ labor law rights.

Under Abruzzo’s proposal, the NLRB would balance worker and employer interests if an employer establishes the surveillance or management practices at issue are narrowly tailored to address legitimate business needs.

Abruzzo called for the board to require an employer to disclose to workers how it uses technologies to monitor and manage them in those cases that a company’s interest outweighs employees’ labor law rights—absent special circumstances justifying secrecy.

“Only with that information can employees intelligently exercise their Section 7 rights and take appropriate measures to protect the confidentiality of their protected activity if they so choose,” she said.

(Updated with additional information from memo.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com