Page 55 - FDCC_InsightsSpecialIssue23

Surveillance
Employment Law
Big Brother is Watching You Employers: Section 7 Rights & Workplace Electronic
By Dessi Day & Jean Faure
On October 31, 2022, the Office of General Counsel for the National Labor Relations Board (“NLRB”) issued a memorandum on “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights” (hereinafter “the Memorandum”). The focus of the Memorandum is on technological advances which employers increasingly use to monitor and manage employees within the workplace and beyond. The General Counsel notes that these advances in monitoring capabilities raise multiple issues for employers under the National Labor Relations Act (“the Act”). One area of specific concern for the General Counsel appears to be the “omnipresent surveillance and other algorithmic- management tools” used by employers, which may impair or discourage employees’ abilities to engage in protected activities and keep any such activities confidential from the employer.
Many employers who do not have unionized workers may not be aware that they too are subject to the requirements of the Act. The Act applies to most private employers, granting employees the right to unionize, collectively bargain, and, even in nonunion settings, engage in concerted activity for their “mutual aid and protection” – commonly known as Section 7 rights. Employees’ rights under the NLRA include permission to discuss the terms and conditions of employment, and employees now more often than not use technology to do so.
The Memorandum provides examples of potential but otherwise legitimate practices that may interfere with concerted activities, including the following:
• Recording employee conversations at work, especially prevalent in warehouse settings,
• Using keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day for employees using computers—whether in call centers, offices, or at home,
• Tracking movement using wearable devices, security cameras, and radio- frequency identification badges, and
• GPS tracking devices and cameras keeping tabs on drivers on the road.
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FDCC ANNUAL FIVES 2023
Dessi Day
Jean Faure