NLRB warns workplace surveillance is potentially illegal

On October 31, 2022, the General Counsel of the National Labor Relations Board (NLRB) issued a press release to announce her next litigation target. It takes aim at electronic monitoring and “algorithmic management of employees.” Employers must remember that issues like this apply to both unionized and nonunion workforces under Section 7 of the National Labor Relations Act (NLRA).

Background

The press release takes a broad approach to “algorithmic” or “automated” management of employees, stating that these terms apply to “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.” The General Counsel states that her concern is the potential for “omnipresent surveillance.”

Section 7 provides employees with the right to form labor unions and to engage in other concerted activities for the purpose of mutual aid or protection. These rights broadly protect employees in joining together to unionize and ­address workplace issues, such as pay, changes in benefits, workplace safety, and other conditions of employment.

Protected concerted activity includes employees speaking amongst themselves about these work topics, as well as bringing issues to the attention of their employer in requests or complaints.

Section 7 rights and advanced technology