The National Labor Relations Board’s General Counsel recently stated her intention to target employers’ use of electronic monitoring technology and other surveillance equipment as a violation of the National Labor Relations Act. In GC Memorandum 23-02, General Counsel Jennifer A. Abruzzo stated that she would “urge the Board to apply the Act to protect employees, to the greatest extent possible, from intrusive and abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”
Abruzzo couches her new strategy as a natural extension of current Board law. In her memorandum, Abruzzo justifies her approach by pointing to other cases in which the Board has limited an employer’s use of technology where it directly interferes with employees’ Section 7 rights. For example, Abruzzo cites cases where the Board limited employers’ use of technology to monitor open picketing and hand-billing activities, the installation of monitoring equipment in response to those activities, or the screening of job applicants based on their prior concerted activities.
However, where those cases directly involved employees’ Section 7 activities, Abruzzo now takes her crusade a step further. Abruzzo states that she will “urge the Board to find that an employer has presumptively violated Section 8(a)(1) of the Act 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.” Moreover, Abruzzo states that “[i]f the employer’s business needs outweighs employees’ Section 7 right, unless the employer demonstrates that special circumstances are require covert use of their technologies, [she] 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.”
This regime would create murky waters for employers. For instance, Abruzzo would simply presume that certain monitoring equipment violates the Act without requiring any evidence that the employer used it to surveil employees’ protected activities. Also, Abruzzo makes no attempt to explain what types of electronic monitoring would tend to interfere with Section 7 rights. Apparently, that determination is left up to the whims of her regional offices. Finally, Abruzzo fails to justify why she feels that, after an employer proves that it has a legitimate business need for surveillance equipment, the employer should still be forced to jump through hoops regarding disclosure of that technology.
Employers that utilize electronic monitoring equipment of any kind should speak with legal counsel to determine how this General Counsel Memorandum may affect their operations moving forward.