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NLRB General Counsel Targets Electronic Monitoring and Management of Employees

General Counsel Abruzzo has urged the Board to “adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity” in a new memo

Employers would be presumed guilty under proposed approach: “I will urge the Board to find that an employer has presumptively violated Section 8(a)(1)”, Abruzzo says, “where 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 Act.” 

Until an employer can prove otherwise: Under General Counsel Abruzzo’s proposal, companies will have to prove that use of employee monitoring and management technology is “narrowly tailored to address a legitimate business need” which the Board does not find “outweighs Section 7 rights.” 

If an employer fails to show a special interest, it will be required “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,” Abruzzo maintains, “can employees intelligently exercise their Section 7 rights and take appropriate measures to protect the confidentiality of their protected activity if they so choose.” 

The framework would apply to all employers, not just those with unions. There are many legitimate business purposes for monitoring employee communications, including detecting and mitigating cybersecurity threats, ensuring compliance with workplace guidelines, and providing for workplace safety. The framework resembles the type of aggressive approach the Board might take for all workplace rules. 

Many apps commonly used by employers to facilitate communication between employees may be implicated—including those downloaded on employees’ own devices, as GC Abruzzo notes. 

Several federal agencies have focused on employee monitoring and the use of AI in the workplace, General Counsel Abruzzo notes, including the FTC, CFPB, Department of Justice, EEOC, and the Department of Labor. 

Looking ahead: Currently, New York, Connecticut and Delaware require employers to provide employees with notice of electronic monitoring. While not yet legally binding, General Counsel Abruzzo’s proposal could have a much larger impact, as it will inform NLRB enforcement policy. Further, the proposal sets an exceedingly high bar for employers to meet on top of state requirements—particularly at a time when the workplace relies increasingly on digital communication tools. 

Published on: November 4, 2022

Authors: Daniel W. Chasen

Topics: Employee Relations, Employment Law, Technology

Daniel W. Chasen

Vice President, Workplace Policy, HR Policy Association

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Contact Daniel W. Chasen LinkedIn

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