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11.29.22 – Journal Record

The National Labor Relations Board is expected to expand workers’ protections from electronic surveillance in ways that are going to be challenging for employers.

NLRB General Counsel Jennifer Abruzzo has broadened the interpretation of the National Labor Relations Act to presume an employer’s surveillance and management practices violate the law unless they prove otherwise, said Michael Bowling, a labor attorney with Crowe & Dunlevy.

In a new memo, Abruzzo said she will urge the board to adopt a new framework for protecting employees to the greatest extent possible from employers’ abuse of technology unless the employer demonstrates that special circumstances require covert use of the technologies. She also 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.

Employers would do well to take a step back and think through how the use of technologies to monitor and manage their employees is justified under the law and whether they are able to prove it, Bowling said.

“The amount of tracking has increased exponentially in the last decade to monitor employees’ productivity, behavior and choices,” he said.

“In Oklahoma, there is no obligation to disclose the level of surveillance in the workplace,” Bowling said. “No matter whether the law requires it be disclosed or not, I would always recommend disclosure.”

Letting employees know you are monitoring their performance and emails reduces the feeling management is spying on them and helps them think through their actions, often to a better end, he said.

Abruzzo’s memo describes various technologies that are increasingly being used to closely monitor and manage employees, although not all of them are legal everywhere.

According to the memo, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices.  And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day.

Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas.

Bowling noted it is illegal in Oklahoma to record employees’ phone calls because at least one party must know the conversation is being recorded. But employers can use surveillance cameras that might show two employees in a long conversation. Was it gossip or brainstorming an idea that would benefit the company?

“All of these various tools are only as good as the interpretation. You have to talk to the employees about what’s going on,” Bowling said.

The oldest technologies – global positioning systems and cameras – are the ones most often used, but that will shift over time as more technologies are broadly adopted, he said.

Bowling said the most common employee complaint he hears involves GPS tracking on company vehicles. “It doesn’t just turn on and off when they clock in and out. They feel it is an unfair invasion of their privacy.”

He said employers have used the GPS data to prove allegations against employees.

Data from company-owned phones and computers likewise is available to employers. “When you choose to use work resources, you are opening yourself up,” Bowling said.

It’s a balancing act for companies, who will come under more scrutiny if the NLRB adopts the new framework.

Employers are increasingly concerned about issues related to violence in the workplace, identity and property theft, lowered productivity, and on-the-job accidents and injuries, the Society for Human Resource Management reports.

Coupled with the ever-increasing costs of litigation, employers must find appropriate ways to minimize these risks. As a result, many employers now monitor employees at work to prevent injuries, misconduct and other types of loss, according to SHRM.