NLRB General Counsel: Electronically monitoring employees may violate the law

The proliferation of remote work has created new and strong incentives for employers to invest in tools that make it easy to electronically monitor employees. This prompted National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo to publish Memorandum GC 23-02, which cautions employers that “electronic monitoring and algorithmic management of employees” may interfere with employees’ abilities to exercise their Section 7 rights under the National Labor Relations Act (NLRA).

Section 7 and electronic monitoring

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” and the right “to refrain from any or all such activities.”

In Memorandum GC 23-02, Abruzzo cites longer-standing limitations on employer monitoring activities (e.g., restrictions on “pictorial recordkeeping” of “picketing or handbilling”) to assert that electronic monitoring of employees may similarly and unlawfully stifle protected concerted activity. She says, “Close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights.”