By: Kara Maciel and Darius Rohani-Shukla<\/p>\n\n\n\n\n\n\n\n
On October 31, 2022, the National Labor Relations Board (the \u201cBoard\u201d) General Counsel Jennifer Abruzzo sent a memo to all regional directors, officers-in-charge, and resident officers communicating her concerns over electronic monitoring and algorithmic management. The memo highlighted concerns that employers might be able to use those tools to impair or negate employees’ ability to exercise their rights under Section 7 of the National Labor Relations Act (the \u201cAct\u201d).<\/p>\n\n\n\n
Technological advancements have enabled employers to surveil and analyze employees in increasingly intrusive ways. For example, employers can record workers’ conversations, track their movements with wearable devices, and monitor employees’ computers with keyloggers and software. Employers can also use algorithms to: identify disengaged employees at risk of leaving their employment; suggest career paths for current employees; assist employers through the performance management process; assess personality, aptitude, skills, and perceived “cultural fit;” and even monitor employee efficiency.<\/p>\n\n\n\n
The Board has previously recognized that some employer surveilling practices are unlawful. In instances where employees are engaging in protected concerted activity and public union activity \u2013 the Board has acknowledged that photographing employees engaging in protected concerted activities is intimidating. An employer’s capacity to surveil its employees is analyzed by balancing its justification for the surveillance versus the apparent risk of interfering with or deterring employee activity.<\/p>\n\n\n\n
Surveillance Technologies and Algorithmic Tools impact employees\u2019 rights under Section 7 and Section 8(a)(1) of the Act:<\/u><\/strong><\/p>\n\n\n\n Employer can violate Section 8(a)(1) through the following activities:<\/p>\n\n\n\n Electronic Surveillance in the Workplace<\/em><\/strong><\/p>\n\n\n\n\n\n\n\n Employers could use excessive surveillance in the workplace to deter employees who seek to engage in protected conversations about unionization or terms and conditions of employment before group action. If the surveillance includes break times and nonwork areas, employees may feel unable to engage in solicitation or distribution of union literature during nonworking time.<\/p>\n\n\n\n The Board will presume that an employer has violated Section 8(a)(1), 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. <\/p>\n\n\n\n Additionally, an employer who, for any reason, needs to spend money on surveillance technology \u201cto obtain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer\u201d must generally file a Form LM-10 to report the expenditure.<\/p>\n\n\n\n Use of Algorithmic Tools in Making Employment Decisions<\/em><\/strong><\/p>\n\n\n\n Employers using artificial intelligence to screen job applicants or issue discipline may violate Section 8(a)(3) if the underlying algorithm makes decisions based on employees’ protected activity<\/strong>. For example, an employer who uses a third-party software provider to scan resumes to detect text that matches an employer\u2019s desired qualities or evaluates a candidate\u2019s performance on personality tests to analyze employees\u2019 protected activity could violate Section 8(a)(3) if they are not careful.<\/p>\n\n\n\n In sum, employers implementing surveillance technologies or algorithmic tools should consider their potential to affect employees in workplaces where they engage in protected activity under Section 7 of the Act. Without comprehensively analyzing those issues, employers risk potential violations under the Act.<\/p>\n","protected":false},"excerpt":{"rendered":" By: Kara Maciel and Darius Rohani-Shukla On October 31, 2022, the National Labor Relations Board (the \u201cBoard\u201d) General Counsel Jennifer Abruzzo sent a memo to all regional directors, officers-in-charge, and resident officers communicating her concerns over electronic monitoring…<\/p>\n","protected":false},"author":21,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","_links_to":"","_links_to_target":""},"categories":[15],"tags":[822],"class_list":["post-6243","post","type-post","status-publish","format-standard","hentry","category-traditional-labor-relations","tag-ai-digital-data"],"acf":[],"yoast_head":"\n\n
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