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NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices

National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced in a new memo her intention to protect employees from intrusive or abusive electronic monitoring and automated management practices through “vigorously enforcing current law” and by urging the NLRB to apply settled labor-law principles in a new framework.  

The memo describes various technologies that are increasingly being used to closely monitor and manage employees. The NLRB cites as an example some employers who record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices.

General Counsel Abruzzo notes that she will urge the NLRB 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 (NLRA) 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 NLRA. Under the new guidance, even if the NLRB deems tracking technology permissible, it will generally 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. This could have implications for technologies used to track worker productivity.

Notably, the memo also provides that an employer who spends money on surveillance technology “to obtain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer,” or otherwise expends money to interfere with, restrain, or coerce employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing, must generally file a Form LM-10, reporting the expenditure to the U.S. Department of Labor’s Office of Labor-Management Standards. 

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