Thursday, November 3, 2022: Analytical Basis Behind U.S. NLRB General Counsel’s Memo on Electronic Surveillance and Organizing Flawed, Says Top Labor Law Attorney
Memo is Geared to Insert NLRB into Non-Union Workforce, Attorney Observed
The U.S. National Labor Relations Board (NLRB)’s General Counsel (GC) Jennifer Abruzzo’s concern that employers’ use of electronic monitoring tools might discourage workers from unionizing is “analytically flawed,” attorney Steven W. Suflas told DirectEmployers (DE) WIR team in an interview on Thursday. Mr. Suflas is Of Counsel in the Salt Lake City office of Holland & Hart LLP. Moreover, the memo is an indication that Abruzzo is seeking to insert the NLRB further into the affairs of the non-unionized workforce, he said.
On Monday, October 31, GC Abruzzo sent a memo to the Board urging it to adopt a new policy that would find an employer presumptively violates the National Labor Relations Act (NLRA) when the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the NLRA. Abruzzo fears that the increasing use of electronic surveillance and software to closely monitor and manage employees deters workers from having discussions that serve as a necessary start to collective activity, including union campaigns.
“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the [NLRA] by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” GC Abruzzo stated in a press release.
However, “only lawyers are worried about that,” Mr. Suflas said. “The linchpin is that a reasonable employee would not see monitoring policies as infringing on their NLRA rights, primarily because most employees are not aware of the NLRA,” he explained. Therefore, “the analytical basis [of the memo] is flawed,” he observed.
How We Got Here
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities” (See 29 U.S.C. § 157). Section 8(a)(1) of the NLRA makes it an unfair labor practice (ULP) for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. (See 29 U.S.C. § 158)
In her 9-page memo, GC Abruzzo described various technologies of concern to her that are increasingly being used to closely monitor and manage employees and may infringe an employee’s Section 7 rights. Examples of these practices include employers:
- recording workers’ conversations and tracking their movements using wearable devices, cameras, radio-frequency identification badges, and GPS tracking devices;
- monitoring employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.
Moreover, some employers monitor employees outside of working time via employer-issued phones or wearable devices, or apps installed on workers’ own devices. GC Abruzzo also noted that pre-employment personality tests and scrutiny of applicants’ social media accounts concerned her.
Employer Transparency Of Monitoring Devices Concern Also Floated: Her proposed framework would provide that “[i]f the employer establishes that the [surveillance and management] practices at issue are narrowly tailored to address a legitimate business need—i.e., that its need cannot be met through means less damaging to employee rights—[the Board should] balance the respective interests of the employer and the employees to determine whether the Act permits the employer’s practices. If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, [the Board should] require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains.”
“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,” asserted GC Abruzzo in the memo.
Memo is a Means to Further Insert the NLRB into the Non-Union Workforce
Since Mr. Suflas stated that GC Abruzzo’s memo does not realistically reflect the actual concerns of typical employees, WIR asked him why the GC might focus on this topic. The NLRB is looking for ways to stay relevant amid declining union participation, he explained, and this proposed policy could be a lever to further insert the NLRB into the non-union workforce.
“For the NLRB to have jurisdiction, it has to demonstrate that these rules interfere with employee rights to engage in concerted activity,” Mr. Suflas explained. Under this “analytically-flawed” proposed policy, “if a union is involved in organizing activities and employers have electronic monitoring practices, they [would] create a platform” for the NLRB to get involved, Mr. Suflas pointed out. “That’s the whole point” of the memo’s proposal, he said.
In the 1950s about 35 percent of the workforce was unionized. In January 2022, the Bureau of Labor Statistics reported that the total union membership rate for the public and private sectors combined was down to 10.3 percent in 2021. The union membership rate of public-sector workers – 33.9 percent in 2021 – continued to be more than five times higher than the rate of private-sector workers, which was 6.1 percent. The NLRB only has jurisdiction over the private sector, Mr. Suflas emphasized, which means it has jurisdiction over only 6.1 percent of the workforce.
“Therefore, the contemporary NLRB is an agency with nothing to do,” Mr. Suflas stated.
“The agency is ill-equipped for the modern, electronic non-union workplace,” he added.
As such, employers should conduct a “risk/reward analysis” – i.e., consider “what is the risk that something bad will happen if [they push back against] an NLRB rule [that] is not legally sound,” advised Mr. Suflas.
