On October 31, 2022, the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, released GC Memorandum 23-02, entitled Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights. In the memo, she indicated that she plans to “urge the Board to protect employees, to the greatest extent possibly, from intrusive and abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”
General Counsel Abruzzo explains that the use of “intrusive or abusive electronic monitoring and automated management practices” may interfere with employees’ ability to engage in protected activity. Abruzzo points out that new technologies such as movement tracking devices, keyloggers and tracking software, as well as improvements to existing technologies such as camera and audio recording, GPS tracking, artificial intelligence, and algorithm-based decision-making software, can present a risk of unlawful employer conduct including the following:
- Surveilling employees or creating the impression of surveillance through tracking, monitoring, and recording software or devices.
- Implementing new technologies in response to protected activity or using existing technologies to discover the existence or extent of protected activity.
- Disciplining employees who concertedly protest the use of such technologies.
- Using algorithmic management to establish production quotas and efficiency standards, and then discriminatorily applying those standards to union supporters.
- Collecting employee data to determine the propensity to seek representation or otherwise engage in concerted activity.
- Tracking or monitoring employee activity and movement to prevent certain communications or isolate union supporters.
- Failing to bargain over or provide information about the implementation of new technologies.
According to General Counsel Abruzzo, previous Board and Supreme Court precent will be zealously enforced and she “will urge 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 addition, she stated that “in appropriate cases, [she] will urge the Board to find that an employer has presumptively violated Section 8(a)(1) 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.”
General Counsel Abruzzo suggests that employers establish “narrowly tailored” practices to address “legitimate business needs” as to whether the practices outweigh employees’ Section 7 interests. If the employer establishes that its narrowly tailored business need outweighs those rights, she will nevertheless “urge the Board to require the employer 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,” unless the employer can establish special circumstances.