On October 31, 2022, Jennifer A. Abruzzo, General Counsel for the National Labor Relations Board (NLRB), issued a Memorandum regarding new challenges that employers will face for the electronic monitoring and algorithmic management of employees.
Electronic Surveillance
The Memorandum explains that an increase in technology availability has resulted in employers’ increasing use of these technologies to closely monitor and manage employees. For example, employers record workers’ conversations and track their movements using wearable devices, security cameras, and radio-frequency identification badges. On the road, they use GPS tracking devices and cameras. With respect to employees who use the computer for their work, Abruzzo identified that employers use keyloggers and software that takes screenshots, webcam photos, and audio recordings. Further, the Memorandum points out that this type of monitoring also reaches into employees’ time outside of work, even before actual employment begins.
Current Regulations
According to Abruzzo, many of these practices are unlawful under the current existing regulations. Employer surveillance of employees’ picketing and handbilling tends to intimidate, and thus violates the National Labor Relations Act (NLRA). Also, utilizing new technologies or expanding the use of existing ones in response to protected activities violates Section 8(a)(1) even if it only creates an impression of surveillance. Further, Abruzzo identified that an employer...
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