There are countless workplace technologies available to companies now that enable the tracking of employees for various purposes. For example, many employers have GPS devices on company vehicles so they can track how efficiently deliveries are being made. But does the use of such technology violate labor law? Based on a new memo from the National Labor Relations Board’s (NLRB) general counsel, the answer could soon be “yes” in many cases.

According to an NLRB press release issued on Halloween (spooky!): “The General Counsel will urge the [NLRB] to adopt a new framework for protecting employees from employers’ abuse of technology by holding that an employer has presumptively violated the Act where an 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.”

The press release goes on to say, “If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, she will urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains.”

The memo states that employer use of such technologies in many instances could have a tendency to chill protected activity by workers, such as discussions about the possibility of forming a union. The...

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