COMMENTARY
Jennifer Abruzzo, the general counsel of the National Labor Relations Board (NLRB), launched a nationwide attack on electronic monitoring practices deployed by management to promote legitimate safety, security and productivity goals.
On Halloween, Abruzzo sent a memo to the board’s regional counsels located throughout the country directing them to root out what she termed “intrusive or abusive electronic monitoring and automated management practices,” which she believes employers are using to abuse workers and stifle their labor rights.
She wrote that “close, constant surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under federal labor law. Abruzzo believes that electronic surveillance and automated systems can discourage employees from engaging in legally protected activity, including conversations about the terms and conditions of their employment and unionization efforts.
In her Oct. 31 memo to the NLRB regional counsels, she asserted that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace.
Through this and other actions, she and the board are continuing energetically pursuing their goal of making it easier for unions to organize while at the same time making it difficult for management to resist such efforts, a campaign that kicked off on the very first day of Biden’s presidency.
Earlier this year, we discussed the tidal wave of union organizing election requests across the country that have been encouraged and supported by the board’s new policies, and the uptick of successful unionization efforts taking place in the private sector for companies as diverse as Starbucks and Amazon.
Abruzzo has taken the lead in forging the new policies by issuing memos to regional staff urging them to promote the enforcement of changes she wants to see go into effect, as well as encouraging them to search through their caseloads for opportunities to pass them up to the five-member board, which will allow them to overturn previous policy precedents unions don’t like.
Shifting Burden of Proof
Abruzzo also is urging the board to adopt a new policy that would presume a violation of law where an employer’s surveillance and management practices, viewed as a whole, tend to interfere with or prevent a reasonable employee from engaging in any concerted activity protected by the National Labor Relations Act (NLRA).
An employer might be able to rebut this presumption if it can establish that its practices are “narrowly tailored to address legitimate business needs,” she admitted. In those cases, the board would balance the employees’ rights against the employer’s business needs to determine whether the employer’s actions are permissible under the NLRA, observe attorneys James Holt and Eduardo Vargas of the Reed Smith law firm.
As a result of this new enforcement emphasis, they urge employers to promptly begin reviewing their policies and practices regarding workplace technology. This includes any requirements concerning use of mobile device applications or employer-provided cell phones and devices.
Attorney David Phippen of the law firm of Constangy Brooks Smith & Prophete, cuts to the chase in summarizing the memo’s impact on employers: “The general counsel’s announced approach essentially puts many current management practices and methods under the microscope for a potential finding of an unfair labor practice. The burden will be on employers to prove that they need their monitoring systems and that there are no reasonable, ‘less-interfering,’ alternatives.”
Phippen explains that the new policy could end up imposing disclosure obligations that would defeat the productivity-enhancing purposes of the systems altogether. Among the technological tools targeted by Abruzzo are security video, video and electronic surveillance systems that are currently required for food processors and other highly regulated industries.
He stresses that Abruzzo’s jaundiced view of current practices explicitly includes such common practices as keystroke logging and computer mouse tracking, Internet monitoring, computer webcams and microphone tracking, timed screenshot systems, vehicle or cell phone tracking, telephone conversation recording, and software that tracks logins and logouts of computer databases.
It is true that Abruzzo does like to paint with a broad brush. She says in her memo, condemning a wide range of practices, “In warehouses, for example, some employers record workers’ conversations and track their movements using wearable devices, security cameras and radio-frequency identification badges. On the road, some employers keep tabs on drivers using GPS tracking devices and cameras.”
Abruzzo also emphasized the point that some employers monitor their employees who work on computers—whether in call centers, offices or at home—using keyloggers and software that takes screenshots, webcam photos or audio recordings throughout the day.
In addition, she specifically refers to artificial intelligence and algorithm-based decision-making tools, such as job applicant personality tests, which also have attracted the attention of other federal and state agencies.
What Employers Should Do
Phippen warns that employers should learn about and comply with the federal Electronic Communications Privacy Act and laws in states and other jurisdictions where they employ workers, such as California. Make sure to bear in mind that remote workers generally are governed by the employment laws of the states where they work—not the state where the employer is based.
It's also worth keeping in mind that Abruzzo’s new battle plan is just one piece of the legal patchwork that employers face when monitoring workers, he adds. “The COVID-19 pandemic gave rise to remote working arrangements, and many employers have increased their use of technological tools to manage their increasingly off-site workforces. As a result, the legal landscape is evolving rapidly.”
Abruzzo’s crusade ultimately may harm the employees she purportedly seeks to protect, Phippen points out. “In addition to enhancing employee productivity, electronic monitoring often makes it possible for employers to allow employees to work remotely.”
Other attorneys also warn that employers should assess whether these processes could be viewed as technology-based surveillance; whether they are narrowly tailored to further specific business interests; and how those interests might compare to the personal interests of employees.
If the employer’s business needs are judged by the NLRB to outweigh the employees’ rights under the NLRA, the board would require the employer to disclose to employees the technologies being used to monitor and manage them, its reasons for doing so, and how it is using the information it obtains, according to the Reed Smith attorneys.
Abruzzo also highlights in the memo that multiple other federal agencies have chosen to target employers for their use of monitoring technologies and are working with each other and the NLRB, note attorneys James A. Paretti, Jr., Christopher Henderson and Michelle Devlin of the Littler Mendelson law firm.
Among the agencies active on this front include the Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CPFB), Department of Justice (DOJ), Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL)—almost all of which have interagency agreements with the NLRB to share information and coordinate enforcement against employers.
“Recent agreements that we have signed with many of these agencies will facilitate information sharing and coordinated enforcement on these issues,” Abruzzo revealed.
The Littler Mendelson attorneys observe that she also may seek other remedies besides disclosure of electronic monitoring to employees. This could include limiting access to information and permitting employees to respond to discipline based on electronically obtained information, which is consistent with her ongoing effort to impose extraordinary remedies against employers.
