NLRB Questions Surveillance Tech

A key official at the National Labor Relations Board is warning that she will take a more critical view of surveillance technologies companies might use with employees, generally presuming that those technologies interfere with employees’ right to talk about work conditions and to organize.

Jennifer Abruzzo, general counsel of the NLRB, outlined her views in a nine-page memo published earlier this week. As general counsel, Abruzzo plays a crucial role in policies the NLRB adopts and enforcement actions that local NLRB offices take across the country. So compliance officers would do well to heed her words, and consider the implications for managers at your enterprise who might use surveillance technologies in improper ways and leave your company exposed to accusations of worker intimidation.

Specifically, Abruzzo said technologies such as keystroke loggers, webcams, tracking chips in employee IDs, facial recognition apps, and audio recording software can all give companies new power to monitor and control employee behavior. If that control becomes so intrusive that employees can’t talk with each other privately about work conditions or plans to organize into a union, then those technologies could violate Section 7 of the National Labor Relations Act. (Section 7 gives employees the right to collective bargaining and to engage in “concerted activities” without interference from management.)

“I will urge the board to find that an employer has presumptively violated [the National Labor Relations Act] where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the act,” Abruzzo wrote.

Yes, Abruzzo’s letter primarily deals with labor relations issues, and those issues typically go to the legal department. Compliance officers should still pay attention here because Abruzzo is talking about how managers employ surveillance technologies at scale. That means there will be policies to roll out, training to deliver to managers, and complaints that might come across your internal hotline. (Plus, ya know, a lot of compliance officers work in the legal department anyway.)

Triggering NLRB Scrutiny

One point to remember here is that using surveillance technology in the workplace isn’t illegal per se. Companies have numerous legitimate reasons to monitor employees, such as tracking employee productivity to calculate performance-based pay or tracking their locations for safety reasons. Abruzzo isn’t saying companies can’t use surveillance technology at all.

Rather, if a company uses surveillance technology specifically to interfere with workers’ protected activities, or that surveillance technology interferes with workers’ protected activities more generally, then you could run afoul of the National Labor Relations Act and NLRB enforcement officers might come calling. 

For example, if managers want to use surveillance tools in response to protected activity — say, setting up a security camera in the employee breakroom, after the managers get wind that employees might be talking about a unionization drive — that’s a bad idea. At the least, those managers should seek prior approval from compliance or legal before doing so; probably they shouldn’t do it at all.

More interesting, however, is the idea that surveillance technology might end up violating workers’ Section 7 rights even without the company intending to do so. For example, you might want to set up a security camera in the breakroom simply to have an ability to detect misconduct in the breakroom — say, one employee harassing another. That sounds reasonable.

But if that surveillance technology then spooks other employees who might only want to use their breaks to complain about work conditions, that could end up violating their Section 7 rights too. As Abruzzo writes in her memo:

I will urge the board to adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity… An employer’s right to oversee and manage its operations with new technologies is “not unlimited in the sense that [it] can be exercised without regard to any duty which the existence of rights in others may place upon [the] employer.”

That quote in the last line is from Republic Aviation v. NLRB, a Supreme Court ruling from 1945 that struck down a company’s non-solicitation rule because the rule had the practical effect of disrupting employees’ ability to organize.

So aside from the risks of using surveillance technology specifically to disrupt workers’ Section 7 rights (which is dumb), companies will need to consider whether their use of surveillance technology inadvertently disrupts those rights as a byproduct of the technology’s standard use.

Well, that’s a policy management challenge. You’ll need to consider what forms of surveillance might be construed as intimidating. You’ll need policies to define how, when, and why managers can use surveillance tools, so that they won’t violate NLRB standards.

Details of the Challenge

Some of the policy management challenges here are relatively straightforward to knock down. For example, managers might want to buy new surveillance technology that could give you Section 7 headaches. So you could include language in your policy requiring managers to explain why they want that new surveillance technology, before allowing the purchase to proceed.

I’m more concerned, however, about managers who try to use existing surveillance technology in new ways. Even the best policy might not be able to intercept those abuses. That strikes me as more of a training challenge, where you’ll need to explain the risks to managers and expressly instruct them not to do certain things that could cause a Section 7 violation.

There might be more technical challenges here, too. For example, you might install surveillance technology on employees’ personal devices — but what happens after work, when they bring those devices with them to meet coworkers after work? That could have a chilling effect on employees’ eagerness to talk about workplace issues, since they might know that Big Brother can track them. You might need to consider how you could turn off some surveillance features at specific times (say, after end of the work shift).

In other words, this is a mess. Surveillance technology has its place, but it’s also a bit creepy. Abusing the technology can be incredibly corrosive to organizational culture (like, good luck getting people to report misconduct if they’re annoyed that you’re tracking their every pee break), and even if Abruzzo’s vision for Section 7 enforcement is a bit much, she’s not wrong to raise the issue.

Just one more item for you to ponder on your company-issued device — you know, the one you carry with you all through your life, every day.