Heads up: The feds are watching you watching your employees

How closely are you watching your employees? If it’s too closely, the feds may be watching you – and may soon be taking more aggressive action to stop it.

The National Labor Relations Board (NLRB) just issued a memo announcing an intent to protect employees “from intrusive or abusive electronic monitoring and automated management practices.” The memo also pushes for a “new framework” that would make it easier to prove employer violations of the National Labor Relations Act.

What are they watching?

What kind of technologies are used to monitor and manage employees? Examples include wearable recording devices, cameras, radio-frequency identification badges and GPS tracking devices.

Other employers monitor employees’ computers with keyloggers and software that tracks usage. The pandemic-spurred spike in remote work has increased the use of these tracking tools by employers.

Tracking employees with the aid of technology tools can serve useful purposes, such as managing employee productivity. But their increased use has people at the NLRB worried about workers’ rights.

“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity – and to keep that activity confidential from their employer,” said NLRB General Counsel Jennifer Abruzzo, who wrote the memo.

Translation: It’s OK for employers to use these tools, but they should be careful not to go too far.

The big question, of course: Just how far is too far?

Here are the rules

The memo provides some parameters. It explains that under existing law, danger lurks for employers who use the technology to collect information about employees who are engaging in protected concerted activity or public union activity.

In these cases, the NLRB has said that “pictorial recordkeeping tends to create fear among employees of future reprisals.” Such recording may be permissible, but its tendency to intimidate workers forbids it “absent proper justification,” the memo explains.

In addition, the memo adds, employers violate the National Labor Relations Act if they start using new monitoring technologies in response to employee activity that the law protects. It is also a mistake for employers to use technologies that are already in place to discover protected employee activity, the NLRB advises.

For this NLRB, even the impression of surveillance can be a problem for employers. “Employer surveillance of Section 7 activity is unlawful whether it is carried out openly or covertly and certain conduct can be unlawful even if it merely creates an impression of surveillance,” the memo warns.

Another no-no: Disciplining employees who concertedly protest surveillance or a pace of work that algorithmic management methods set.

Some employers use artificial intelligence tools to screen job applicants or to issue discipline. Employers who do so must take care to make sure the algorithm driving those decisions is not based on the protected activity of employees.

New framework proposed

The memo is asking the board to adopt a more employee-friendly framework to protect employees from their employers’ abuse of technology – and it is a framework that should strike at least a bit of fear in the hearts of employers.

Abruzzo wants the board to take the position that an employer has presumptively violated the NLRA “if its 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].”

In addition, the memo urges the board to require employers to tell employees when, why and what technologies are being used to manage them, unless special circumstances apply. It further says employers should have to tell employees how it is using the information it obtains.

The law gives employees the right to keep their union activities confidential, the memo says, adding that close surveillance by employers threatens that right.

The NLRB is committed to taking an interagency approach to addressing this issue, saying it has signed agreements with the Federal Trade Commission, the Department of Justice and the Department of Labor to coordinate enforcement activities.

Bottom line: Electronic monitoring and management of employees is an area that is increasingly fraught with peril for employers, who must be mindful of the legal limitations on the use of technology to keep tabs on their employees.