Increased NLRB Restriction of Electronic Monitoring and AI Management

Employer use of electronic monitoring and artificial intelligence management

The National Labor Relations Board (NLRB) currently restricts electronic monitoring and AI management that would impede employees’ collective bargaining rights. Under Section 7 of the NLRA, employees can discuss collective bargaining and other mutual aid or protection related to work. Employers cannot interfere or restrain employees from such discussion. They also cannot coerce employees not to exercise this right.

Existing Memorandum limiting electronic monitoring and AI management

The NLRB already has a Memorandum that establishes violations of using monitoring technologies in response to, for discovering or to give impressions of monitoring employees engaged in these protected activities.

Proposed new Memorandum

The General Counsel for the NLRB is urging the board to issue a new Memorandum that would prevent the following practices:

  • Recording workers’ conversations and tracking movements using security devices, RFI badges and wearable devices
  • Surveilling drivers using GPS tracking devices and cameras
  • Using key loggers and software that takes screenshots, webcam photos or audio recordings during the day for the purpose of monitoring employees

The proposed change would establish the idea that monitoring tends to prevent a reasonable employee from engaging in the protected activity as an unfair labor practice.

Section 7 Rights vs. Production

In addition, the General Counsel has questioned the fairness of using software that encourages employees to work faster. She feels it may become circumspect if it interferes with their Section 7 rights. An employee could be forced to work at such a fast pace that there is no time to discuss employment issues with other workers.

(Reference: JD Supra )

As an employer, do you have legal concerns about Section 7 and electronic monitoring or AI management?

If you have questions about how these employment laws affect your business, arrange a consultation with an experienced employment defense lawyer. Call Stephen D. Hans & Associates, P.C. at (718) 275-6500.