On October 31, 2022, the General Counsel to the National Labor Relations Board, Jennifer Abruzzo, issued a memorandum on the legality of an employer’s use of electronic surveillance and algorithm-driven management. In Memorandum GC 23-02, the General Counsel announced her intention to seek a new legal framework to analyze whether the use of such tools in the workplace violates the National Labor Relations Act.
Over the past decade, employers have introduced a broad array of new technologies into the workplace to better monitor employees, improve productivity, and maintain workplace safety and security. For example, GPS tracking devices and cameras keep track of drivers. Keyloggers and other software monitor employee computer usage and may use webcam cameras to track remote workers. Employer-issued cellphones and tablets can keep track of an employee’s location both during and after work hours. Some employers use information collected by these technologies to discipline employees who fail to meet productivity goals or take unauthorized leaves of absence.
In the Memorandum, the General Counsel called for “a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity.” Specifically, Abruzzo called for the Board to adopt a balancing test that weighs employee privacy interests against the employer’s legitimate business needs. An employer will be required to show that “the practices at issue are narrowly tailored to address a legitimate business need – i.e., that its need cannot be met through means less damaging to employee rights.” Even where an employer meets this burden, except where the employer establishes that “special circumstances” require covert use of technologies, Abruzzo argues that the employer must must disclose to employees the technologies it is using, the reasons for doing so, and how it is using the information it obtains.
The approach advocated in GC 23-02 will not become law unless it is adopted by a panel of the NLRB in a case involving employer use of electronic surveillance or algorithm-driven management. We should expect to see NLRB Regional Directors pursuing charges under this legal theory in the months to come.