Many employers use technology to track employee keystrokes, capture screenshots and monitor time spent on work devices to track employee performance during work hours, in the office, or remotely.
This technology has caught the attention of the National Labor Relations Board’s General Counsel, Jennifer Abruzzo, who recently issued a memorandum seeking to broaden the National Labor Relations Act and limit the electronic surveillance of employees.
Abruzzo is concerned that such employee tracking and algorithmic-management tools could interfere with the exercise of Section 7 rights by significantly impairing or taking away an employee’s ability to engage in protected activity and keep it confidential from their employer.
In a memorandum covering her concerns (Memorandum GC 23-02), GC Abruzzo requests the Board adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts.
Further, Abruzzo urged the Board to find that employers presumptively violate the Act if their surveillance technology and management practices tend to interfere with or prevent employees from engaging in protected concerted activity.
The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the Board would weigh the employer’s interests against its employees’ interests.