Section 7 Rights
Section 7 of the National Labor Relations Act gives employees “the right to self-organise, form, join or assist labor organizations, bargain collectively through representatives of their choosing, and engage in other concerted activities for the purpose of collective bargaining, assistance or other mutual protection.” as well as the right to “refrain from any or all of these activities”.
It is illegal for an employer to interfere with, restrict or coerce employees in the exercise of these rights.
Although Section 7 does not directly address electronic monitoring or the use of artificial intelligence or algorithms in managing personnel, Abruzzo maintains that it is the “responsibility of the board” to adapt the law to changing industrial lifestyles. ”
According to the GC’s memorandum, employers have already been legally found to be in violation of the NLRA if:
- create new monitoring technologies in response to activity protected under Section 7;
- use already existing technologies for the purpose of detecting this activity; or
- Creating the impression of observing its employees for this purpose.
The General Counsel is now asking the Board to adopt a new framework to protect employees from “intrusive or abusive forms of electronic surveillance.” Without detailing specific practices that may be illegal, the memorandum refers to current practices such as:
- record workers’ conversations and track their movements using wearable devices, security cameras, and radio frequency identification badges;
- “keep[ing] tabs” on drivers using GPS tracking devices and cameras; and
- Monitor employees working on computers with keyloggers and software that takes screenshots, webcam images, or audio recordings throughout the day.
This new framework would find that an employer is most likely to commit an unfair employment practice where electronic monitoring and management practices, viewed as a whole, tend to interfere with or prevent a reasonable employee from engaging in an activity protected by law. GC Abruzzo also urges weighing the impact of the employer’s rules on “a reasonable employee who is in an economically disadvantaged position, taking into account the totality of circumstances”.
Productivity versus employee rights
The general counsel’s memo even casts doubt on employers’ use of software to encourage employees to work faster. She laments, “In the workplace, electronic monitoring and the rapid pace of work set by automated systems may severely restrict employees or prevent them altogether from participating in protected conversations about unions or terms and conditions of employment that are a necessary precursor to teamwork.”
In other words, it appears the General Counsel will go so far as to suggest that employees have a Section 7 right to time to discuss unionization or the terms of their employment while on the job. This view likely shocks many employers who have justifiably assumed that they expect employees to be fully committed to the job they are doing during working time.
What does this mean for employers
Although the General Counsel cannot change the law himself, she has an important role in determining which cases will be brought before the National Labor Relations Board, whose members can make the law under the National Labor Relations Act. Furthermore, employers may be found to be in violation of the law based on practices that have never been challenged in the past, or even those previously deemed legal by the NLRB. Thus, the announcement of this new enforcement initiative should concern employers who engage in any form of electronic monitoring or algorithmic management of their employees.
Other than mentioning various technological capabilities, the General Counsel did not explicitly advise employers of practices that might challenge it. All that is clear is that it seeks strong protection of employee privacy at the expense of the employer’s productivity and profitability.
Employers who use computer algorithms, artificial intelligence, or electronic monitoring tools should review their use in light of this NLRB General Counsel Memorandum. Relevant considerations are likely to include whether the program or monitoring is ongoing outside office or business hours, whether any data is available to third parties, and the purposes served by the use of the technology. But until the NLRB considers more specific issues, it will be difficult to predict the extent of the potential limitations and which factors will be most important in the board’s analysis.