Responding in part to the nature of the post-COVID-19 remote workplace, NLRB GC Jennifer Abruzzo has released a memo on employers’ use of electronic monitoring and automated management in the workplace. The memo also directs NLRB Regions to submit to the Division of Advice any cases involving intrusive or abusive electronic surveillance and algorithmic management that interferes with the exercise of NLRA Section 7 rights.

Citing concerns over the interference of labor organizing and bargaining communications, Abruzzo looks to broaden the scope of the NLRA. In some cases, she urges, the NLRB should find employers presumptively violate the NLRA if their technology has a tendency to interfere with or prevent employees from engaging in protected activity. Importantly, the scrutiny called for in the memo applies to all employers subject to the NLRA, not just those employers with a unionized workforce.

Some level of remote work is relatively common nowadays. Many employers, however, are struggling to engage with employees, maintain productivity, ensure security of IT systems, and otherwise manage their workplace. Of course, monitoring employees in the “workplace” is not new and not limited to remote workers. Workplace monitoring technologies, however, have advanced considerably in recent years, as noted in the memo:

It is well documented that employers are increasingly using new technologies to closely monitor and manage employees. In warehouses, for example, some employers record workers’ conversations and track their movements using wearable devices, security cameras, and radio-frequency identification badges. On the road, some employers keep tabs on drivers using GPS tracking devices and cameras. And some employers monitor employees who work on computers—whether in call centers, offices, or at home—using keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.

NLRB precedent prohibits employers from unlawfully preventing discussions related to organizing or bargaining. Employers also cannot retaliate against employees for exercising such activities. For example, NLRA Section 7 protects employees’ right to engage in concerted organizing activities. Similarly, Section 8 prohibits employers from interfering with, restraining, or coercing employees exercising such rights. Likewise, certain surveillance practices are unlawful under the NLRA, such as photographing employees engaging in protected activities.

Abruzzo requests that the Board adopt a broader framework on the use of electronic management and monitoring tools. While she acknowledges the “Board must reach an accommodation between competing employer interests and employee rights,” the memo urges the Board to find that employers presumptively violate Section 8 “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 activated protected by the Act.”

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, the GC nonetheless will “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.

The impact on employers that use monitoring and automated management technology can be significant if the NLRB implements Abruzzo’s suggestions.

Abruzzo also reaffirmed the inter-agency approach between the NLRA and other federal agencies, including the Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor to address new cases involving technology in the workplace. Indeed, the regulation of monitoring and automated management technology is growing. For example, the EEOC released a technical assistance document addressing the potential pitfalls of using decision-making software, including artificial intelligence, and compliance with the federal civil rights laws that agency enforces.

As employers work to manage a new and changing workplace, and adopt technologies to help in the process, they will need to evaluate these technologies beyond their primary purpose and consider how they may affect compliance with a range of other obligations.

Please contact your Jackson Lewis attorney to determine how this memo may impact your workplace rules and policies and to answer any other questions you may have.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Jonathan J. Spitz Jonathan J. Spitz

Jonathan J. Spitz is a principal in the Atlanta, Georgia, office of Jackson Lewis P.C. and co-leader of the firm’s Labor Relations practice group.

Photo of Richard F. Vitarelli Richard F. Vitarelli

Richard F. Vitarelli is a principal in the Hartford, Connecticut, office of Jackson Lewis P.C. He is the co-leader of the Labor Relations practice group, the firm’s national labor practice.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.