The NLRB is keeping electronic surveillance of workers in check

The National Labor Relations Board is a federal agency tasked with making sure workers can organize to improve their working conditions, wages or form a union.

But the NLRB says some employers are using technology to prevent or discourage workers from doing just that.

The agency released a public memo on Oct. 31 saying it plans to protect employees from “intrusive or abusive electronic monitoring and automated management,” practices the NLRB says are increasingly happening as the technology gets better and companies seek more oversight of their workers, especially with more people working remotely.

Marketplace’s Kimberly Adams spoke with Jennifer Abruzzo, general counsel for the agency and author of the memo, about some of the new surveillance methods that concern her.

The following is an edited transcript of their conversation.

Jennifer Abruzzo: You know, these advances have dramatically expanded employers’ ability to monitor and manage employees within the workplace. So we’re not looking at any one particular tool, we’re actually looking at all of them to see what sort of impact the use of those tools may have on workers’ rights.

Kimberly Adams: Can you give us a scale or sort of idea, an idea of the scope of tools that employers have at their disposal to sort of keep an eye on what employees are doing.

Abruzzo: In warehouses, for example, they can record conversations, they can track movements through cameras. In call centers, they can record keystrokes. You know, certainly even before an employee becomes an employee and is an applicant, they can pry into private lives by scrutinizing social media, by giving personality tests to try to determine their propensity for, let’s say, union support, for example. So there’s any number of technological tools that they can use that may impact the rights of workers at the workplace, and actually even beyond the workplace, at their homes.

Adams: So why release this memo sort of flagging that the NLRB is paying attention to this? Why put this out now?

Abruzzo: What we decided to do was put out a public memo that offered transparency to employers, to labor organizations, to worker advocacy groups and workers writ large that the NLRB in particular is looking at these technologies and the use of them, as well as the use of the data that they accumulate, to see if the impact on workers’ rights is such that it is interfering with their ability to communicate with one another at the workplace and try to improve their wages or their working conditions. Because if in fact there is interference, that is a violation of our statute.

Adams: You talk about improving work situations. Specifically, this memo mentioned surveillance tech potentially being used to stop workers from organizing in their workplaces, maybe to form a labor union. What sort of surveillance behavior are you seeing in that regard?

Abruzzo: So there has always been, for an extended period of time, a violation of the act if there is actual surveillance, or if you give the impression of surveillance. And through the expansive use of these internet technology tools that track the movements of workers, record their conversations, record their keystrokes, there never becomes a time or a place for workers to actually feel comfortable without feeling that they either are being surveilled or could be surveilled. And we haven’t really gotten into algorithmic management, which may preclude people from actually taking breaks with one another or at all. And therefore they’re unable to actually engage with one another at the workplace to talk about workplace issues.

Adams: This term you’ve used a couple of times, algorithmic management, I think a lot of people may not be familiar with that term. Can you say a bit more about what it is and why it concerns you?

Abruzzo: Sure. So it is using technological tools to drive decision making. Those decisions, as I said, they happen oftentimes in real time. So there’s a very breakneck pace of work. And if workers are not able to keep up, they will be disciplined for that, could even be fired because of that. So the data that is obtained through these technological tools are detrimentally affecting workers, not only their terms and conditions of employment, vis-a-vis whether they can go on breaks or not, but it is also affecting whether or not they’ll actually be able to remain in the workplace because they could be disciplined or otherwise terminated for not meeting whatever quotas or efficiency standards are put in place.

Adams: How do you try to balance what might be justified surveillance in the workplace either to do things like prevent theft or make sure people are doing the jobs that they’re paid to do versus the kind of surveillance or monitoring that potentially violates employees’ rights?

Abruzzo: You know, certainly employers have their, you know, managerial interest to maintain production and discipline. An employer can show that the practices are actually narrowly tailored to address a legitimate business need. The board will conduct a balancing test to determine whether the employer’s business needs outweigh the interference to employees’ workplace rights. But I think that when you’re talking about electronic monitoring and algorithmic management, if in fact the board finds, yes, the employer’s managerial interests outweigh the Section 7 rights of employees in this particular instance, the employer still, nonetheless, should advise employees of the technology that it’s using, what’s being used, why it’s being used and how that data is going to be potentially affecting their working conditions. Then employees can intelligently exercise their rights and take appropriate measures to preserve the confidentiality of their actions, because oftentimes people want to keep their actions confidential until a time where they feel comfortable in addressing the concerns with their employer.