October 31, 2022

NLRB Seeks to Restrict Employers’ Electronic Surveillance (and more)

Do you use any technology to monitor any employees’ activities? Some common examples include using security cameras; GPS tracking devices or cameras for employees driving company vehicles; monitoring employees’ use of company computers, or their activity on social media accounts? If you answered, “Yes,” read on.

On October 31st, the General Counsel for the National Labor Relations Board (NLRB) issued a memo to all NLRB regional directors, officers in charge, and resident officers. In the memo, she reminds us that the Board has found the following activities may violate the National Labor Relations Act (NLRA):

  • photographing employees engaged in protected concerted activities;
  • instituting new monitoring technologies in response to activity protected by Section 7 of the NLRA;
  • utilizing technologies already in place, such as reviewing security-camera footage or employees’ social media accounts, for the purpose of discovering that activity;
  • coercively questioning employees with personality tests designed to evaluate their propensity to seek union representation; or
  • creating the impression that it is doing such things.

The GC reminds us that not only can the employer who violates the NLRA be held legally liable but so may a third-party software provider from whom the employer obtained the capabilities to conduct unlawful surveillance.

Stay tuned, talk to your company’s legal counsel about your surveillance activities, and consider the GC’s additional reminders.

    • An employer cannot lawfully prevent discussions about matters related to their status as an employee, even during working time, if they permit other kinds of non-work discussions.
    • Time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee’s time to use as the employee wishes without unreasonable restraint, although the employee is on company property.
    • The NLRB will take an interagency approach. “Agencies including the Federal Trade Commission, the Consumer Financial Protection Bureau, Department of Justice, Equal Employment Opportunity Commission, and the Department of Labor are working to combat a range of harms employers inflict on workers using such technologies, from discrimination in hiring and work assignments, to misclassification of employees as independent contractors, to other unfair or deceptive pay practices, to selling or sharing workers’ personal data, to injuries caused by overwork and repetitive motions.”