By Olivia Hariharan Godt and Kristin Bremer Moore
Employers are increasingly leaning on technology to monitor employee productivity. Although the phenomenon is not new, the options for monitoring have certainly expanded. Now, businesses can choose from a wide variety of monitoring software which count keystrokes, review internet usage, track employee movements or review email communications, among others.
As employers use this technology more and more, various governmental bodies are cracking down.
General Counsel Jennifer Abruzzo of the National Labor Relations Board recently vowed to “vigorously” enforce existing law to protect workers from heightened monitoring. All workers – regardless of whether they are in a union or not – have certain rights. They can talk about employment conditions; self-organize; form, join or assist a union; collectively bargain; and engage in other protected activities. Abruzzo expressed concern that certain monitoring techniques infringe on these rights.
Some older forms of monitoring are already illegal. Employers cannot photograph or video employees engaged in protected activities without proper justification, institute new technology in response to protected activity, or use existing technology to discover protected activity (such as reviewing security camera footage or social media accounts).
Newer forms of monitoring are now under fire. In the memo, Abruzzo said she takes issue with “intrusive or abusive” technology that could lead to “omnipresent surveillance” and monitoring, such as excessive GPS tracking, recording worker conversations, webcam photos of workers throughout the day, and monitoring that extends beyond the work day or work place.
Abruzzo outlined a new framework for determining whether an employer monitoring system violates worker rights:
- An employer will have presumptively violated the law if their surveillance and management practices “would tend to interfere with or prevent a reasonable employee from engaging in” protected activity.
- If the employer can establish their practices are “narrowly tailored” to address a legitimate business need, then the needs of the employer are balanced against the employee’s rights. The practice is only “narrowly tailored” if the legitimate business need “cannot be met through means less damaging to employee rights.”
- If the business needs outweigh the employee’s rights, then the employer can continue monitoring, but only if it discloses the use of the technology to employees, its reasons for monitoring, and how it uses the information.
The National Labor Relations Board is not the only governmental entity curtailing monitoring. Several states have passed, or are working to pass, laws about these technologies. New York, Connecticut and Delaware require companies to provide written notice to employees when using monitoring technologies. The type of notice required varies. Each law empowers the state to impose civil penalties for noncompliance.
California is working to pass a similar law, called the Workplace Technology Accountability Act. If passed as proposed, the law would impose stringent requirements on employers. Not only would they need to provide notice that monitoring technology is being used, employers would also need to explain why and how they collect data and provide workers an opportunity to fix incorrect data, among other requirements. We expect other states will follow suit.
Given the legal developments in this area, what should an employer do?
- Avoid surveillance or monitoring during break times, meal periods, after hours or in non-work areas where protected activity and conversations are more likely to occur.
- Avoid imposing a “breakneck pace” set by algorithmic monitoring that could prevent a worker from breaks with coworkers when they may engage in protected activity or conversations.
- Avoid monitoring employees outside of work, including social media.
- Ensure monitoring and management is “narrowly tailored” to a legitimate business need.
- Comply with wiretapping and similar laws by disclosing the types of monitoring used, how they are used and why they are used.
The law will continue to develop in this area. Stay in touch with your legal counsel to ensure compliance.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.