Shout out to the National Labor Relations Board — specifically, the Board's General Counsel.
The timing of yesterday's announcement of her new memo to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices was **chef's kiss**
It came just after I announced the next edition of The Employer Handbook Zoom Office Happy Hour on Friday, November 4, 2022, at Noon ET. Along with a team of cyber-risk, privacy, and data security attorneys from FisherBroyles, we will present Cybersecurity 101 for HR Professionals and Employment Lawyers.
Click here (https://bit.ly/Cyber4HR) to register.
But let's talk now about the GC memo. From the press release:
The memo describes various technologies that are increasingly being used to closely monitor and manage employees. For instance, some employers record workers' conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices. And some employers monitor employees' computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday.
That last sentence suggests that there are situations in which businesses have legitimate business-related interests to use technology to monitor and manage employees. However, the GC is concerned that companies could leverage these technologies to chill employees from exercising their rights to organize and form a union. We call these Section 7 rights, and they exist in union and non-union workplaces.
And while that thought probably hadn't crossed the minds of like 95% of you reading this post, the GC will urge the Board to adopt a new framework for protecting employees from employers' abuse of technology by holding that an employer has presumptively violated the National Labor Relations Act 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 Act.
Read that last part carefully. Employer intent won't count for much.
But even 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 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.
While this isn't a rule yet, it could be soon. And if this becomes a rule, add this to the list of updates to your 2023 employee handbook.
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