NLRB General Counsel Issues Memorandum on Unlawful Electronic Monitoring of Employees

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Attorney Harrison Oldham


On October 31, 2022, the National Labor Relation Board’s (“NLRB”) General Counsel, Jennifer Abruzzo issued a Memorandum regarding new challenges that employers will face in the remote and electronic monitoring of employees. The Memorandum explains that as monitoring technology becomes increasingly available, employers can more easily monitor and manage employees remotely. In response, the Memorandum aims to restrict the “omnipresent surveillance” of employees in the advent of the work-from-home culture. The Memorandum may be found here.


Types of Electronic Surveillance


The Memorandum identifies multiple types of electronic surveillance that employers are implementing. For example, certain employers now record employees’ conversations and track their movements using wearable devices, security cameras, and radio-frequency identification badges. Additionally, employers monitor employees on the road with GPS tracking devices and cameras. Further, the Memorandum identifies how employers utilize keyloggers and software that takes screenshots, webcam photos, and audio recordings of the employees at work.


Ms. Abruzzo asserts that these surveillance technologies potentially interfere with employees’ Section 7 rights. Section 7 states that employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for collective bargaining or other mutual aid and protection. An employer may impede those rights when using technology to surveil such activities. Thus, the Memorandum serves as a warning as to how technology may interfere with employee rights even if not done so intentionally.


For example, the Memorandum identifies keylogging and other automated management software as a particular concern. All employers, particularly remote employees, and employees who travel for work, are interested in ensuring their employees perform the work they are paid to do. This is particularly relevant in the work-from-home culture world where managers are not physically present to ensure employees are working. The Memorandum, however, warns about using remote keylogging and automated monitoring software, cautioning that this software cannot set such a “breakneck pace” that an employee is “severely limit[ed] or completely prevent[ed]” from engaging in protected activities.


The NLRB also found that off-the-clock surveillance can create Section 7 issues. Ms. Abruzzo noted that company-issued cell phones and wearable devices have been used to track employees after hours and that certain employees are required to download apps on their personal phones that track their after-work activities. All of these could cause potential Section 7 issues in the NLRB’s view, specifically regarding an employee’s right to privacy.


The Memorandum highlights the concern by stating that “‘[t]he confidentiality interests of employees have long been an overriding concern to the Board.’ Because employers so commonly retaliate against employees for exercising their Section 7 rights, the Board recognizes, with court approval, that a ‘right to privacy’ is “necessary to full and free exercise of the organizational rights guaranteed by the National Labor Relations Act.” Thus, an employer may have passive tracking on a work-issued phone or device only to find that it potentially violates Section 7 of the Act.


Proposed Additional Restrictions 


The Memorandum indicates that, in addition to enforcing current regulations, Ms. Abruzzo will urge the NLRB “to adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity.”


She stated that “employers cannot lawfully prevent discussions about such matters, even during working time, if (as is often the case) they permit other kinds of non-work discussions.” In addition, “time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee’s time to use as the employee wishes without unreasonable restraint. . . .” As such, for the NLRB, employee confidentiality has never been more paramount, as the Memorandum reiterates that employees can keep unionizing activities secret from their employers. Thus, “constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights.”


Accordingly, to enforce current regulations and the new guidance, among other things, the NLRB will facilitate information sharing and coordinate these issues with the Federal Trade Commission, the Consumer Financial Protection Bureau, the Department of Justice, the Equal Employment Opportunity Commission, and the Department of Labor.


Key Takeaways


Employers must always be careful when engaging in employee surveillance, and the NLRB’s Memorandum gives employers more reason to be careful. Employers should always engage with counsel before enacting any surveillance procedures to ensure it does not run afoul of Section 7 or the myriad of other legislation in this area, in addition to common law claims.



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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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