NLRB Memo on Employer Surveillance

(Please note that IRI Consultants does not provide legal advice. You should consult an attorney to determine how the following information may impact your organization.)  

The topic of employer surveillance during union organizing is a topic that keeps coming up because there is a growing number of technology-based tools appearing for onsite and remote employee performance monitoring and surveillance online, around the physical workplace, and on employer grounds. As we have frequently discussed in various blogs, National Labor Relations Board's General Counsel Jennifer Abruzzo has a pro-union agenda and is the gift that keeps on giving to labor unions. Her most recent target concerns the use of employer technologies, including sophisticated tools like artificial intelligence, to monitor employees and could be used to interfere with employees' rights to engage in protected concerted activities. Memorandum GC 23-02, issued October 31, 2022, lets the NLRB and employers know she wants vigorous enforcement of labor law concerning employee monitoring but in "new ways" that she calls a framework for compliance.  

Spying and the Impression of Spying 

While the NLRA gives employers rights, the National Labor Relations Act (NLRA) says employers can't spy on employees' union activities. The NLRB explains, "' Spying' means doing something out of the ordinary to observe the activity. Seeing open union activity in workplace areas frequented by supervisors is not 'spying.'" However, even if your supervisor is witnessing open union activity, your leader must not appear to be "chilling" the union activity either. The NLRA also says you can't create the impression that you're spying on the union activities of your employees. One of your leaders may seem to be spying even when that is not the intent, and your company ends up facing an unfair labor charge (ULP) that is difficult to defend.  

GC Abruzzo's memo addresses employer surveillance of employees with the intent of disrupting union activities, and she spends considerable time discussing the technologies that employers are using. One of the challenges employers face is that they use various technologies to monitor employee performance, so how do you avoid being wrongly accused of monitoring employee union activities? During the COVID pandemic, many employees worked remotely; post-COVID, many remain remote employees or have hybrid work schedules. The technologies, coupled with different workplace structures, triggered Abruzzo's memo. But it's likely she would have written it even if the remote workplace was not as common as it is because of the growing use of sophisticated technologies to manage and monitor worker productivity.  

Following are some of the main points she discusses in her nine-page memo.  

  • Employers are using work surveillance and algorithmic management tools that could easily be used to interfere with the NLRA Section 7 and 8 rights conveyed to employees. 
  • Technologies tracking employee movements include wearable devices, security cameras, radio-frequency ID badges, GPS tracking devices and cameras, keyloggers, software that takes screenshots, webcam photos, audio recordings, employer-issued phones and apps, artificial intelligence and algorithmic management software that collects and analyzes data and is used for decision-making, social media, etc.; Each one of these technologies can be used to interfere with employee protected activity. 
  • Existing law says that photographing employees engaged in protected concerted activities tends to intimidate them, so employers must have a solid justification for taking pictures. 
  • Personality tests that evaluate the likelihood an employee will be interested in unionizing violate the NLRA. 
  • Using only artificial intelligence to screen job applicants violates the NLRA if the algorithm is making decisions based on detecting protected activity because that discriminates to avoid hiring union supporters. 
  • Using technology to apply production quotas or efficiency standards for the purpose of getting rid of union supporters isn't allowed.  
  • If a workplace is already unionized, employers must provide information about tracking technologies and include the information in the union contract negotiations
  • You can't add new monitoring technologies after union organizing starts. 
  • You can't use any of your current technologies to discover union activity. 

Technology has become a flash point in the current unionizing trend. For example, one of the main grievances of Amazon employees was Amazon's use of technology to track their every move during a work shift. Data is used to discipline employees, penalize employees who take breaks that are too long, and deliver work instructions throughout the day, all of which create high stress.  

The NLRB believes that misuse of technologies under the pretense of safety and productivity can have a chilling effect on union organizing. A chilling effect means the employer's behaviors discourage the employees from exercising their NLRA-protected rights. For example, Amazon corporate employees were monitoring closed Facebook groups that contracted Flex drivers used in order to track union organizing activity and planned strikes. Amazon's HR department appeared to be monitoring employee listservs to detect employee activism. Amazon denied that the technologies were used to interfere with union activity, but warehouse workers viewed the surveillance as a threat to attempted unionizing. Even if Amazon was not spying on employees, the employees felt intimidated or chilled. 

Amazon is not the only company accused of using various technologies to prevent or discourage union organizing. Some of the technologies are very sophisticated too. Google has a program that alerts managers to internal meetings that have 100 or more employees, HelloFresh uses a tool called Falcon to track social media posts concerning union activity, and Walmart has monitored employee activity and conversations about unions. These are just a few of the examples mentioned in the Newsweek article 'They Were Spying On Us': Amazon, Walmart, Use Surveillance Technology to Bust Unions 

NLRB memo employee surveillance

Creating an Impression of Surveillance 

How do you create an impression of surveillance? The case of National Captioning Institute, 368 NLRB No. 105, says, "It is well settled that an employer commits unlawful surveillance if it acts in a way that is out of the ordinary in order to observe union activity." You might give the impression of surveillance when you purchase new technology OR use existing technology in new ways to monitor employees. For example, you install a security camera that records breakroom activity after one of your managers tells you some employees are discussing the benefits of unions. Or you reprogram your security camera to capture employee discussions in work areas when the recording was not considered necessary before signs of union organizing.  

It's also possible to give an impression of spying through your management's words. In the case of Napleton Cadillac, 367 NLRB No. 6, a manager told hourly employees that a specific employee was leading union organizing. Since the hourly employees had never discussed their union organizing activities with management, they assumed the manager was spying somehow.  

What Does GC Abruzzo Propose in the Memo?  

GC Abruzzo has two main goals concerning the memo. She wants the NLRB to zealously enforce existing NLRB precedents concerning surveillance or spying. She also urges the NLRB to develop a new framework for protecting employees from abusive or intrusive surveillance. The new framework proposes three main steps.  

First, the NLRB would find an employer has violated the NLRA when the employer's surveillance and management practices tend to interfere with or prevent an employee from engaging in protected activity.  

Second, if an employer says that surveillance and management practices are legitimately needed for business operations, the NLRB will determine if the practices are allowed by the NLRA.  

Third, if they aren't allowed, the employer will have to cease and probably pay a fine, among other penalties. Suppose they are allowed, and the business needs do outweigh the employees' rights. In that case, GC Abruzzo wants the NLRB to require the employer to inform employees about the technologies used to monitor and manage them, the reasons for doing so, and how the information is used.   

GC Abruzzo also believes there should be an interagency approach to preventing employer misuse of electronic surveillance and algorithmic management technologies. The agencies include the following:  

  • Federal Trade Commission 
  • Consumer Financial Protection Bureau 
  • Department of Justice 
  • Equal Employment Opportunity Commission 
  • Department of Labor 

The agencies have agreements with the NLRB to share information and coordinate enforcement. Over the next couple of years, there will undoubtedly be coordinated enforcement of NLRB precedent concerning surveillance and the use of technologies. GC Abruzzo wants the NLRB Regional Directors to send her their cases concerning "intrusive or abusive electronic surveillance and algorithmic management" so she can identify test cases that support her desire for increased enforcement. 

The Art of Labor Relations CTA

Expect an Increase in ULPs 

Though the NLRB has not yet adopted the proposed framework, you can expect an increase in ULPs involving the use of technology. You must be able to establish a legitimate business need for using any employee monitoring technologies. According to attorneys Fisher Phillips, legitimate business needs include safety, operational, or efficiency matters. If GC Abruzzo's framework is adopted, the attorneys believe employers can expect a heavy burden placed on employers to justify and defend their workplace surveillance and automated work management practices. The four hurdles the attorneys expect employers to face are:  

  • Presumptive violation – There will be a presumption that the NLRA was violated whenever you implement or maintain any surveillance or management practice that tends to "prevent a reasonable employee from engaging in protected activity," even if it only extends to working time. 
  • Burden of proof - You must prove a practice is "narrowly tailored to address a legitimate business need." 
  • Balancing test – If you meet the burden of proof, the NLRB will try to balance the legitimate interests against employee interests to determine if the practice is allowed. In other words, you may prove the surveillance or management practice is justified with no workable alternatives, and the NLRB can still find you in violation if it decides the employee rights outweigh the legitimate business needs. 
  • Mandatory disclosure of covert practices – Even if you pass the balancing test, you would still have to disclose any covert monitoring practices and the reasons for them to all employees. According to Fisher Phillips, "Such affirmative disclosure requirements – in the absence of ongoing organizing activity and despite a balancing of interests in favor of the employer – would be virtually unprecedented in the annals of workplace law." 

What Can You Do Now to Prepare for Potential Changes to NLRB Precedent? 

Since technologies are used for everything from monitoring productivity to making decisions about compensation and disciplinary actions, you can take some proactive steps now in preparation for the possible adoption of the new framework. 

  • Ensure there is no direct interference with NLRA-protected activity and that technology tools and management practices support a legitimate business need 
  • Document the legitimate reasons identified, asking if the business needs the technology. 
  • Train your supervisors and managers in adhering to the current NLRB doctrine on surveillance 
  • Look beyond the primary purpose of the technologies employed. 
  • Look at monitoring technologies as a whole (Abruzzo mentions the totality of circumstances) during your assessment and identify what employee data is collected, when it is collected (during or after work hours), and how it is used. 

Should the NLRB adopt GC Abruzzo's recommendations, the NLRB would begin making decisions based on the assumption that the practices could inhibit protected activities, as opposed to whether they do. Frankly, this would put employers in an untenable situation because any technology or practice could be identified as having the potential to interfere with employee protected activity. The question then becomes: How can employers utilize their work management technologies without incurring a host of ULPs?   

If you or your team is unsure how to assess your organization's management and employee communication system from the NLRB's perspective, contact IRI Consultants to connect with our labor relations, communications, and organizational development experts. 

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