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By: Attorneys Davis Runde and Dean Dietrich
Employers and employees alike have been impacted by technological advancements in the workplace. Some of this advancement has occurred naturally, some of it has been intensified by COVID and remote work.
Programs such as Microsoft Teams and Slack have allowed employees to communicate more efficiently and work more collaboratively while other technologies have allowed employers to better track their employees’ productivity, including software that tracks employees’ keystrokes, emails and even whether employees are sitting at their desks.
In some workplaces, these employee monitoring technologies are beginning to be scrutinized as they relate to the ability of employees to engage in protected union activity. It is feared that electronic monitoring of employees may be perceived as intimidation of the employees not to engage in union activity. This concept is not necessarily a new one, in 1993 F.W. Woolworth Co. was found to have violated the National Labor Relations Act (NLRA) when it photographed and videotaped employees engaging in protected union activity.
The General Counsel for the National Labor Relations Board (NLRB) has taken notice of these employee monitoring technologies and appears to share the same fear as some employees do. In a recent Legal Memorandum (GC 23-02) the General Counsel indicated the NLRB should protect employees from intrusive or abusive electronic monitoring by management. The General Counsel asserted that she would “vigorously enforce extant law” and urge the Board to apply current law “in new ways” to ensure that management practices do not interfere with the Section 7 rights of an employee under the NLRA.
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
The purpose behind the General Counsel’s memorandum is to dictate that the NLRB should be exercising far greater supervision and oversight of the use of artificial intelligence and surveillance monitoring of employees. The General Counsel wants to ensure that employees are not subject to surveillance activities by the employer during break time or other off-duty time when the employee may be involved in union activities.
The General Counsel is also considering a proposal for a new “balancing test” where the employer will be required to justify the use of technology such as surveillance devices to oversee the activities of employees in the workplace. This is different than the current requirements that the NLRB must show the surveillance has negatively impacted the rights of employees to exercise their union organizing rights. The General Counsel also appears to suggest that an employer will be required to report the extent of expenditures made on electronic management technology to the Department of Labor as part of the settlement of any unfair labor practice charge filed by the NLRB.
This is a new age of enforcement from the NLRB and employers need to be aware of the potential for legal challenge to the use of technology to monitor employees in the workplace.
If an employer has questions regarding the General Counsel’s Memorandum and how it may impact its operations, or any other employment matters, please don’t hesitate to contact Weld Riley, S.C. at (715) 845-8234.
Davis Runde is an attorney with Weld Riley, S.C.. Davis is a Wausau native and is a member of Weld Riley, S.C.’s Labor & Employment, Business, and Municipal Law Sections. Prior to joining Weld Riley, S.C., Davis served as an Assistant District Attorney in Marathon County where he was awarded for Outstanding Achievement Supporting Survivors of Domestic Violence.
Dean Dietrich is an attorney and Shareholder with Weld Riley, S.C.. Dean has over four decades of experience practicing law and has statewide recognition as an expert in Labor & Employment law and Professional Responsibility & Ethics. Dean has vast experience representing public and private sector employers in the various aspects of employment law and labor relations. Dean currently serves as President of the Wisconsin State Bar Association.
