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Employers Face Robust Monitoring Disclosure in Labor Board Plan

Nov. 2, 2022, 9:15 AM

An employer’s obligation to disclose electronic surveillance of workers in a proposal by the National Labor Relations Board’s general counsel expands on a trend in recent regulation of technology-enabled workplace practices.

NLRB General Counsel Jennifer Abruzzo has called for a new legal standard to invalidate employee monitoring that tends to interfere with workers joining together for mutual aid and protection, a right protected by Section 7 of the National Labor Relations Act. If an employer’s legitimate business reasons outweigh those rights, the company would have to notify workers about its practices under Abruzzo’s proposal.

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The proposed disclosure mandate follows a notification called for in Equal Employment Opportunity Commision guidelines and a recent New York City law on the use of artificial intelligence in hiring, said Jennifer Betts, an attorney with the management-side firm Ogletree Deakins Nash Smoak & Stewart PC.

“But what’s interesting is that Abruzzo isn’t only urging for a standard disclosure, she would also require an employer’s reasons and how it’s being used,” Betts said. “She’s leveling it up by adding additional layers.”

Detailed information about an employer’s surveillance program is necessary so workers can keep their organizing activities confidential, Abruzzo said in an Oct. 31 memo outlining her plan.

Abruzzo’s proposal appears to maximize safeguards for organizing, providing for disclosure when an employer successfully shows it has a business reason for its surveillance program, said Matthew Fontana, an attorney who represents employers at Faegre Drinker Biddle & Reath LLP.

“The general counsel seems to have fashioned a test that says, ‘Heads, your Section 7 rights are vindicated, and tails, your Section 7 rights are vindicated,’” Fontana said.

Abruzzo’s proposal puts employers on notice about her focus on electronic monitoring of workers. While her framework isn’t yet legally binding, it will be enforcement policy for the agency’s lawyers who prosecute unfair labor practice cases.

To become law, the NLRB would need to embrace Abruzzo’s plan in a decision in an individual case.

Disclosure Benefits, Hurdles

Employers generally favor being transparent about their employee-monitoring practices, said Zoe Argento, co-chair of the privacy and data security practice group at the management-side firm Littler Mendelson PC.

“There’s not much value to surveillance if employees don’t know they’re being surveilled,” Argento said.

Such disclosures can be a heavy administrative burden depending on a company’s size and what technology it uses, Argento said. For example, disclosures that require workers to sign off in acknowledgement can be a heavy lift for a company with ten thousand employees, she said.

Depending on the technology, an NLRB-required disclosure could be onerous, Betts said.

Abruzzo’s plan also covers management practices that are driven by artificial intelligence and algorithms. The way those technologies work can be difficult for employers to understand, which may make it hard to comply with the proposed requirement, particularly if a company is getting its technology from a third-party vendor, Betts said.

Abruzzo said she would urge the NLRB “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.”

A disclosure mandate might not have that intended benefit, however.

“There’s always a risk with any disclosure rule that the disclosure will happen in such a cursory way that employees don’t take it in—imagine a disclosure shuffled in with all the other onboarding paperwork,” added Charlotte Garden, a law professor at the University of Minnesota who’s written on labor organizing amid workplace surveillance.

Still, even a few privacy-minded workers could use that information to organize against intrusive surveillance and spread awareness to their coworkers, Garden said.

Abruzzo’s proposed framework—including the disclosure piece—wouldn’t end intrusive surveillance, but it would provide a counterweight against even more intense forms of employee monitoring than what companies currently use, Garden said.

AFL-CIO General Counsel Craig Becker said Abruzzo has started a conversation in the agency about how new technologies may interfere with workers’ labor rights.

“The case-by-case approach she suggests for the development of the law in this area together with expanded collaboration with other expert agencies is a prudent and appropriate way to address this complex and important issue,” Becker said.

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

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com