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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Gloss