By now, we have all heard stories about remote employees who are working two jobs simultaneously, or have installed software that provides the appearance of work activity. In response to concerns over productivity and engagement, some employers have explored using sophisticated monitoring software, including, in some situations, algorithms that determine whether the employee is actively engaged.

In response, some labor advocates have raised questions as to whether this monitoring activity violates employees’ rights to organize. According to these commentators, these technologies could be used by employers to determine whether they are attempting to organize. Section 8(a)(1) of the National Labor Relations Act generally prohibits employers from conducting surveillance to discover organizing efforts.

Earlier this month, the National Labor Relations Board’s (NLRB) General Counsel issued a memorandum expressing concern that remote worker monitoring activities could violate employees’ Section 8(a)(1) rights. The NLRB noted that federal labor law does allow employers to use surveillance technology (i.e., video cameras in the workplace) to address legitimate business needs.

Employers considering the use of remote worker monitoring technology should adopt guidelines that (1) make clear the specific business reasons and situations where employee work is monitored; and (2) confirm that the technology will not be used to investigate employee organizing efforts. If the employer is undergoing an active organizing campaign, restrictions on the use of such monitoring technologies become especially important.

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