The Memo asks the NLRB to adopt a new framework for protecting employees and, in the meantime, for NLRB Regional Directors to vigorously enforce existing law in cases involving new workplace technologies as a top priority.

On Oct. 31, 2022, the National Labor Relations Board (the “Board”) General Counsel Jennifer Abruzzo issued a memorandum to its 26 regional offices that discusses how employers’ electronic monitoring and automated (or “algorithmic”) management practices may interfere with employees’ rights to confidentially engage in protected concerted activities under Section 7 of the National Labor Relations Act (the “Act”).

GC Abruzzo’s concern is that employers may use these technologies to interfere with employees’ ability to both engage in protected activity and maintain confidentiality of such activity.

Accordingly, GC Abruzzo urges that a new framework should hold that employers presumptively violate the Act when their overall surveillance and management practices would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. In the event that employers’ business needs outweigh employees’ protected rights, GC Abruzzo wants the Board to mandate that unless special circumstances require covert use of electronic monitoring and automated management technologies, employers must disclose to employees the technologies they will use, their reasons for implementing such technologies and how they will utilize the information that would be obtained.

Before any such framework takes effect, the Board must decide a case involving electronic monitoring and automated management practices. GC Abruzzo has instructed regional offices to pursue such cases vigorously.