Last week, the top lawyer at the National Labor Relations Board (“NLRB”) announced that her agency would be targeting workplace surveillance, electronic monitoring, and automated management practices for unfair labor practices under the National Labor Relations Act (“NLRA”). The memo, which is available here, describes various technologies that are increasingly being used by employers to closely monitor and manage employees, including cameras, radio-frequency identification badges, and GPS tracking devices.
In GC Memorandum 23-02, General Counsel Jennifer A. Abruzzo calls for the NLRB to adopt a new, heightened standard preventing employers in union and non-union workplaces “from intrusive and abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.” In addition to direct interference with union rights during a union organizing campaign, Ms. Abruzzo writes 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, Ms. Abruzzo writes that “[i]f the employer’s business need outweighs employees’ Section 7 right, unless the employer demonstrates that special circumstances 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.”
To be clear, the new standard advocated by Ms. Abruzzo is not the law. The NLRB would need to adopt her proposal as part of a decision and, even then, a federal appeals court could determine whether the proposed standard is consistent with the NLRA.
What’s the Current Law on Workplace Monitoring?
Currently, union and non-union employers have very few restrictions on their use of electronic monitoring. For example, unless there are specific restrictions in a labor contract or under state law, employers are permitted to utilize technologies such as GPS tracking, surveillance cameras, and badge readers.
One important caveat, however, is that union employers need to provide any union representing its workforce with notice and an opportunity to bargain over any new tracking or surveillance device that may result in employee discipline (or otherwise alter employees’ working conditions). For example, if an employer is going to add GPS tracking devices to its trucks and would use that information to discipline employees for lying about their whereabouts, then they would usually need to give the union notice and an opportunity to bargain over the change. Anheuser-Busch, Inc., 342 NLRB 560, 560 (2004) (employer violated the Act by failing to bargain with union prior to installation and use of surveillance cameras in the workplace). This right, of course, can be waived by the union and, if there are no restrictions in the union contract regarding monitoring, then it is unlikely that the union could prevent the employer from implementing the monitoring after exhausting any discussions over the proposed change.
It is also important to note that the employer’s historic use of GPS tracking or surveillance cameras could be evidence of an enforceable past practice. But, if new cameras are added (or new uses for existing cameras), it is best to give the union notice of the change and be prepared to bargain over the change. Again, in the absence of a restriction in the CBA, the employer would generally be permitted to move forward with the change. Thus, it is more of a delay in the timing of the change rather than an impediment to the employer implementing the change.
At present, in the absence of a state law or CBA restriction, employers have considerable discretion to implement monitoring equipment such as cameras, GPS, and badge readers. Nevertheless, if Ms. Abruzzo is successful in modifying the legal standard, it is possible that employers will have to rethink or adjust any electronic monitoring of their workforce.
We will continue to monitor this issue as it develops.