On October 31, 2022, NLRB General Counsel Jennifer Abruzzo (“GC Abruzzo”) issued a memorandum in which she pushed for zealous enforcement and Board adoption of a “new framework” to protect employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with protected Section 7 activity.  GC Abruzzo asserted: it is “the Board’s responsibility to adapt the Act to changing patterns of industrial life” in the face of omnipresent employer surveillance and algorithmic productivity technology.

Throughout the memorandum, GC Abruzzo stated that “[c]lose, constant surveillance and management through electronic means” represent severe threats to employees’ basic ability to exercise their rights to self-organization.  Specifically, she described the rise of complex surveillance — cameras, GPS wearables, or other similar productivity tracking technology, and how employers may use the technology to limit the confidentiality of employee actions.  Furthermore, algorithm-based (or so-called AI) systems may present new issues including discriminatory impact on employees.

According to GC Abruzzo, employee conduct should be zealously protected under current Board and Supreme Court precedent — both (1) the ability for employees to engage in protected Section 7 activity; and (2) the ability for employees to maintain the confidentiality of their activities from an employer’s surveillance (or perceived surveillance).

In her memo, the GC suggested the Board presume a violation of Section 8(a)(1) in cases where an employer’s surveillance and/or management practices, taken collectively, tend to interfere with Section 7 rights.  Under the GC’s framework, an employer defending against a presumptive violation must demonstrate that the practices at issue are narrowly tailored to address a legitimate business need.  Moreover, GC Abruzzo urged the Board to balance the employer’s business need against employees’ Section 7 rights.  Therefore, the Board could still find a violation despite the employer narrowly tailoring its practices to a legitimate business need, depending on the Board’s ultimate determination on the weight of employees’ Section 7 rights.

Further, under GC Abruzzo’s framework, even if the Board concludes that the employer’s use of technology does not violate the Act, the Board should still require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how the information obtained is used (subject to certain exceptions, on a case-by-case basis).

Lastly, GC Abruzzo noted that several federal agencies have investigated employer monitoring and productivity tracking technology, and that any NLRB action  would be in concert with other agencies, including the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), the Department of Justice (“DOJ”), the Equal Employment Opportunity Commission (“EEOC”), and the Department of Labor (“DOL”).  In fact, the NLRB General Counsel’s Office just recently signed interagency cooperation agreements with the FTC, DOJ, and DOL, intended to facilitate information sharing and coordinated enforcement between and among the agencies.

While many employers utilize some technological security and monitoring protocols, given the new memo, employers should examine how such technology is used and whether it is sufficiently tailored to minimize its impact on employee rights including Section 7 rights. Employers can preliminarily audit their practices by reviewing the following questions:

  • Does your business have a need for such technology?
  • Is the technology being used in a punitive way?
  • What are the underlying parameters of the technology’s decision-making — is it discriminatory?
  • What data is being collected? Is data being collected from employees’ off-the-clock behavior?
  • Are employees informed/aware of the technology?

This is certainly an area of the law that will see further development.  We will keep you apprised on any updates.

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Photo of Steven Porzio Steven Porzio

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract…

Steven J. Porzio is a partner in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. Steve assists both unionized and union-free clients with a full range of labor and employee relations matters. He represents employers in contract negotiations, arbitrations, and representation and unfair labor practice cases before the National Labor Relations Board.

Steve has experience conducting vulnerability assessments and providing management training in union and litigation avoidance, leave management, wage and hour, and hiring and firing practices. He provides strategic and legal advice in certification and decertification elections, union organizing drives, corporate campaigns, picketing and union contract campaigns. Steve has represented employers in a number of different industries, including higher education, health care, construction and manufacturing in successful efforts against unions in election and corporate campaigns.

In addition to his traditional labor law work, Steve assists companies with handbook and personnel policy drafting and review, daily management of employee disciplines and terminations, and general advice and counsel on compliance with federal and state employment laws.

Steve’s litigation experience includes work on matters before state and federal courts, the Equal Employment Opportunity Commission, the Connecticut Commission on Human Rights and Opportunities, the New York State Division of Human Rights and various other administrative agencies. He has litigated matters involving age, race, national origin, gender and disability discrimination, wage and hour, whistleblower and wrongful termination claims.

While attending the Syracuse University College of Law, Steve served as the editor-in-chief of the Syracuse Science and Technology Law Reporter. He also received the Robert F. Koretz scholarship, awarded in recognition of excellence in the study of labor law.