NLRB General Counsel encourages increased scrutiny of electronic employee monitoring

On October 31, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum instructing regional offices to closely scrutinize employer use of certain electronic monitoring, data collection, and automated management technologies. The memorandum further evidences the Board’s commitment to a strong national labor policy that includes protecting employees’ organizational rights and encouraging collective bargaining.

New technologies come with risk

In the memorandum, Abruzzo explains the use of “intrusive or abusive electronic monitoring and automated management practices” may interfere with employees’ ability to engage in protected activity. She describes new technologies such as movement tracking devices, keyloggers, and tracking software, as well as improvements to existing technologies such as camera and audio recording, GPS tracking, artificial intelligence, and algorithm-based decision-making software. According to her, the technological advancements present a risk of unlawful employer conduct including the following: