NLRB-- Employer Surveillance During Remote Work May Violate Employee Rights
On October 31, 2022, the National Labor Relations Board’s General Counsel issued a memorandum suggesting that employer surveillance of employees, which have increased during this post-COVID remote work era, may violate the NLRA because it may interfere with employees’ right to participate in protected activity such as discussing changes in their terms and conditions of employment or advocating for union representation.
In response to the increase in remote work, employers across the country have started implementing electronic surveillance devices to monitor whether their employees are truly working while at home. Such surveillance tools include keyloggers, webcams, and audio recording devices. The NLRB’s memorandum compares these practices to older surveillance techniques already restricted by the NLRB. For example, the NLRA prohibits employers from taking photographs of employees picketing, striking or performing other protected activities because taking such pictures may result in intimidation and “chill” the exercise of employee rights under the Act.
The NLRB’s memorandum suggests that even if the surveillance is for facially neutral legitimate business reasons, this surveillance in response to remote work may violate the NLRA. The NLRB suggests a framework in which any employer surveillance is presumed to violate the NLRA if the surveillance would “tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.” The employer then bears the burden under this framework of establishing that their surveillance practices are narrowly tailored to address a legitimate business need which cannot be resolved through less damaging means. The NLRB also provides that employers should disclose to employees the surveillance technologies or practices being used, the reason for monitoring, and how the employer uses the information.
The NLRB’s memorandum creates more questions than it answers. Employers need to carefully review their employee surveillance practices and confirm whether they are addressing a legitimate business need. Further, employers should consider establishing a written policy notifying employees of the monitoring practices that are in place, advising them of the reasons for the monitoring practices, and specifically stating that it is not used to prohibit any activity protected by the NLRA.