Is Electronic Monitoring of Employees Legal?

Is electronic monitoring of employees legal?

The National Labor Relations Board (NLRB) recently weighed in on the subject.

As employers have more electronic tools available to oversee employees, the NLRB in October 2022 issued a press release, with General Counsel Jennifer Abruzzo looking to protect workers from “intrusive or abusive electronic monitoring and automated management practices.”

This will be done through enforcement of current law and applying settled labor-law principles “in a new framework,” according to the release.

Is Electronic Monitoring of Employees Legal?

In a memo issued Oct. 31, 2022, the NLRB outlined how employers are tracking, monitoring and managing workers these days:

• Wearable devices
• Cameras
• Audio surveillance
• Radio-frequency ID badges
• GPS tracking devices
• Computer screenshots and keyloggers

Employers often use this data, the NLRB says, to discipline employees and provide directives.

“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act (NLRA) by significantly impairing or negating employees’ ability to engage in protected activity — and to keep that activity confidential from their employer,” Abruzzo said in a statement. “Thus, I plan to urge the (NLRB), to the greatest extent possible, to apply the (NLRA) to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”

What does employer monitoring have to do with labor law? The use of these technologies could inhibit protected employee activity, such as forming a union.

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

—NLRB

Meanwhile, the NLRB memo indicates it would prefer to restrict the use of these mechanisms unless necessary and, when justified, should disclose their use to employees.

Abruzzo will urge the NLRB to adopt a new framework for protecting employees from the abuse of such technology “by holding that an employer has presumptively violated the (NLRA) where an 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 (NLRA),” reads a portion of the press release. “If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, she will urge the (NLRB) 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.”

Lastly, Abruzzo recently signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor, which will facilitate information sharing and coordinated enforcement on these issues.

Conclusion

So, is electronic monitoring of employees legal? The new memo from the NLRB says in many cases it could be in the future.

Should a law regarding the legality of electronic monitoring of employees go forward, it would likely limit many of the methods some employers use to keep tabs on workers.

Still, in order to impact employers using technology to monitor workers, there would likely need to be a ruling regarding a new standard. And employers may consider crafting a disclosure policy regarding electronic monitoring, should the idea of less digital oversight of employees gain traction with the NLRB.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.