On March 7, 2023, the National Labor Relations Board (NLRB) announced a new information sharing agreement with the Consumer Financial Protection Bureau (CFPB). The agencies executed a memorandum of understanding that will remain in effect indefinitely and permit the sharing of nonpublic information, including information about ongoing investigations. According to the NLRB and CFPB, the agreement will help improve the enforcement of both federal consumer financial protection laws and labor laws, with a heightened focus on employer surveillance and employer-driven debt.
Policing potentially unlawful employer use of electronic monitoring, including artificial intelligence has been a focal point for NLRB General Counsel Jennifer Abruzzo. As described in our November 2022 client alert, Abruzzo issued a memorandum in late October 2022 instructing the NLRB’s regional offices to closely scrutinize employer use of certain electronic monitoring, data collection and automated management technologies. Many employers rely on such technologies to improve the efficiency of their operations. Following the execution of the information sharing agreement with the CFPB, Abruzzo noted that certain use of such electronic monitoring and artificial intelligence may chill activity protected by Section 7 of the National Labor Relations Act.
Last year, the CFPB announced a plan to study risks posed to consumers by their employers. Specifically, the CFPB’s plan focused on employer-created consumer debt and the collection of employees’ personal data. The CFPB notes that some employers require employees to take on personal debt to complete mandated training or purchase equipment that ultimately makes it more difficult for the employee to leave for other employment opportunities and limits competition in financial markets. In addition, according to the CFPB, some employers cultivate and monetize employee data collected through electronic monitoring software. This surveillance may violate the Fair Credit Reporting Act, as well as other federal and state consumer financial protection laws. With an increased focus on protecting consumer data of businesses’ customers, the CFPB is now showing an interest in protecting businesses’ employees as well, both from a privacy standpoint and to encourage competitive financial practices.
As discussed in our February 2022 client alert, interagency collaboration has been a point of emphasis for the NLRB General Counsel’s office. Since her appointment in July 2021, Abruzzo has facilitated information sharing agreements with the Office of Labor-Management Standards, the Department of Labor’s Wage and Hour Division, the Department of Justice’s Antitrust Division, the Federal Trade Commission, and now the CFPB. According to Abruzzo, these information sharing collaborations will increase worker protections and create valuable efficiencies that can be capitalized by each agency.
These interagency information sharing agreements increase risk and liability for employers, although it’s difficult to predict the precise effects. Employers may find themselves under investigation from multiple agencies stemming from a single charge with one agency. Employers should consult with counsel about any employee-monitoring software currently being used or potentially being implemented.
