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On October 31, 2022, the National Labor Relations Board issued a memo (GC23-02) announcing their intent to seek a new legal framework to analyze whether employee monitoring tools in the workplace violates the National Labor Relations Act.

Employers increasingly use electronic monitoring and management of employees to optimize their operations and reduce costs. However, these technologies may threaten employees’ exercise of rights under Section 7 of the NLRA, as they can interfere with their ability to engage in protected activities.

Electronic monitoring of employees has become increasingly prevalent in workplaces. While these technologies can improve productivity and efficiency, they can also interfere with employees’ ability to communicate and restrict their rights under Section 7.

Section 7 of the National Labor Relations Act (NLRA) grants employees the right to engage in concerted activities for the purpose of mutual aid or protection. This includes the right to join a union, participate in collective bargaining, and engage in other forms of protected activity. Electronic monitoring and management can interfere with these rights in several ways.

First, electronic monitoring can create a culture of distrust and surveillance in the workplace. Employees may feel like they are constantly being watched and judged, which can make them hesitant to speak up or participate in collective action. This can be especially true when monitoring is used to track individual performance metrics rather than to ensure safety or security.

Second, algorithmic management can limit employees’ ability to engage in protected activity. When algorithms are used to assign tasks, schedule shifts, or evaluate performance, they can create a rigid system that leaves little room for flexibility or negotiation. This can make it difficult for employees to coordinate with one another or advocate for their rights as a group.

Third, electronic monitoring can be used to retaliate against employees who engage in protected activity. For example, if an employee speaks out against unfair labor practices, their employer may use electronic monitoring to scrutinize their work more closely or assign them less desirable tasks. Similarly, if an employee attempts to organize a union, their employer may isolate them from their coworkers or reduce their opportunities for advancement.

To address these issues, it is important for employers to respect the rights of their employees under Section 7 of the NLRA. This may involve limiting the use of electronic monitoring and algorithmic management to situations where it is necessary for safety or security. It may also involve providing employees greater transparency and control over the data collected about them.

What does this mean to you as an employer?

Electronic monitoring of your employees, especially those who work remotely, should only be done so for legitimate business needs. Take care not to create a surveillance culture, limiting employees’ ability to engage in protected activity and enabling retaliation.

Foster a culture where employees are encouraged to bring issues directly to their manager and empower those managers to take action. Many problems that lead employees to collaborate against the company could have been addressed with their direct manager if that person could address their concerns.

Lastly, consider that there may be potential pitfalls in your monitoring software and consider how those might impact your employees’ rights under Section 7.