In recent years, many employers have increased their use of employee monitoring technology as a means to promote more efficient operations, particularly in light of the pandemic-induced shift to remote or hybrid working arrangements. However, with its rise in popularity, employee-monitoring technology has come under scrutiny, as evidenced by an enforcement initiative recently announced by Jennifer Abruzzo, General Counsel to the National Labor Relations Board (“NLRB”).

The Initiative

GC Abruzzo—the person ultimately responsible for investigating and prosecuting unfair labor practice cases under the National Labor Relations Act (“NLRA”)—recently issued a memorandum detailing a “New Framework” she is advocating to crack down on employee-monitoring technology to the extent it is used to interfere with employees’ rights under Section 7 of the NLRA.

Section 7 of the NLRA affords employees, among other rights, “the right …. to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” In short, Section 7 of the NLRA grants employees the right to speak and act collectively to improve the terms and conditions of their employment and working environments.

The new memorandum, issued October 31, 2022, contends that employee’s protected rights can be stifled by employers’ use of location-tracking technology (e.g., cameras, radio-frequency identification badges, and GPS tracking devices) and productivity-monitoring tools (e.g., computer keyloggers or software that takes screenshots, webcam photos, or audio recordings on employees’ computers during working time). Specifically, GC Abruzzo expressed concern that employers could use employee-monitoring technology to impair or negate employees’ ability to engage in protected conduct, or their ability to keep that activity confidential—which protection is also afforded to employees under the NLRA.

Through this initiative, GC Abruzzo, in her prosecutorial capacity, is pushing the NLRB to impose heightened standards for employers who utilize employee-monitoring software, including:

1. A presumption that an employer commits an unfair labor practice in any instance where their surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in protected activity;
2. A balancing analysis of employees’ and employers’ respective rights in instances where an employer establishes that the surveillance practice at issue was narrowly tailored to address a legitimate business need; and
3. A requirement for employers to inform employees about any employee-monitoring technology used to monitor or manage employees, explain the employer’s reason for doing so, and detail how the employer uses that information, unless the employer can demonstrate that special circumstances require covert use of this technology.
    

Practical Implications for Employers

Although GC Abruzzo’s memorandum, alone, does not constitute binding legal authority, it suggests that employee-monitoring technology will be an area of interest for the NLRB, and the NLRB may pursue vigorous investigation and prosecution of unfair labor practice cases involving employee-monitoring technology. However, it is unclear how or to what extent the NLRB’s heightened interest will translate into enforcement actions and/or administrative law determinations relating to employers’ use of employee-monitoring technology. Nevertheless, in light of costs associated with protracted NLRB investigations and unfair labor practice litigation, including the potential for penalties, employers may want to examine their use (or implementation) of employee-monitoring technology to assess and mitigate any risk of alleged infringement on employees’ Section 7 rights.