NLRB General Counsel proposes sweeping changes impacting employers’ use of technology to manage and/or monitor employees

Written by Paige Alli, Richard J. Alli, Jr. and John M. Stellwagen – Bullard Law

In sweeping new proposals, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced Oct. 31 plans to limit employers in their ability to rely on monitoring and management technologies. electronic devices commonly used to monitor employee misconduct and performance issues. If adopted by the Council, the Solicitor General’s proposals would have a huge impact on employers exercising their legitimate business interests to manage and monitor employee performance, during working hours, and impose discipline appropriate.

Under the former NLRB framework, employers were free to adopt technological changes that allowed them to more closely monitor employee work activity without any suggestion that such monitoring activity was somehow inappropriate or a violation of the National Labor Relations Act (NLRA). In the rare cases where employers “crossed the line,” the union or aggrieved employee would be required to file an unfair labor practice charge. The charge should specifically describe the activity the employer was engaging in that unlawfully violated the employee’s rights to join, support or assist the union or labor organization, or to act in concert with each other regarding wages, hours and working conditions. . In doing so, the employee or union filing the charge had the burden of proof to describe the employer’s activities that violated its rights and to provide evidence that a violation had in fact occurred. In other words, a violation would not be presumed to have occurred until the complaining union or employee provided prima facie evidence that the law had been broken. The employer had only to defend itself. If the employee or the union could not present any evidence that a violation had occurred, then the unfair labor practice charge would be dismissed without the employer having to provide any evidence that it had acted correctly in the situation that is the subject of the unfair labor practice. charge.

The employer also had the freedom to adopt a number of electronic and digital monitoring technologies to uncover employee misconduct or performance issues. Since the employer was paying these employees to perform certain assigned work functions, the employer had the right to monitor the activities of the employees to confirm that they were performing their duties in a proper, timely, efficient manner and that they did not were not engaged in other non-work related activities. it was not an essential part of the work for which they were paid.

The new memorandum from the General Counsel overturns these norms. The employer is now the party obliged to prove that it did not break the law by adopting its surveillance technologies. According to the Attorney General’s memorandum, the mere adoption of such technologies appears to suggest a presumption that the employer’s surveillance activities are inappropriate, thereby requiring the employer to prove that they are not guilty of a charge. unfair labor practice rather than the reverse.

The employer’s use of increasingly sophisticated screening technology has been the subject of numerous NLRB rulings over the years, and so long as the employer has not engaged in any type of unlawful conduct and that the employer’s monitoring activities were work-related and did not unduly interfere with the employee’s conversations or activities, during paid but unworked hours, such as breaks or meal periods, and during unpaid hours, such as before or after employees’ shifts, then the Board generally has not had a problem with such monitoring activities unless there has been a specific event that a union or employee could designate as a violation of the law.

The Advocate General’s proposals deviate from the previous legal framework as she seeks to significantly increase restrictions on employers on the use of electronic monitoring and management technology and practices. Under the new framework proposed by the Advocate General, the Commission would now proceed from the presumption that employers have breached national employment relations law whenever the Commission finds that the actions of the employer, considered as a whole , would in any way tend to interfere with or inhibit a reasonable employee from engaging in any activity protected by law. Furthermore, where the employer asserts that there is a legitimate business need, the Advocate General proposes that the onus is on the employer to demonstrate the existence of special circumstances requiring the practice of management or the use of surveillance technology. In this scenario, employers would also be required to: 1) disclose to employees the technology and practices used to monitor and manage employees during their work time; 2) provide the rationale for management practices; and 3) describe how the employer uses the information.

The General Counsel directed all NLRB Regional Offices to notify the NLRB Counseling Division of any situation in which the employer’s monitoring activities may conflict with its expressed concerns. The Advice Division is part of the NLRB General Counsel’s Office which is responsible for providing advice to NLRB regional offices on difficult and emerging issues that arise in the handling of unfair labor practice charges. These new guidelines will have the practical effect of dramatically increasing the number of unfair labor practice complaints as unions try to determine exactly what the Commission will consider illegal. This increased volume will likely cause long delays in processing unfair labor practice charges, meaning the employer will potentially have an unfair labor practice finding hanging over their head for months or even years. while councils sort out what is and is not unfair labor practice. Of course, if the employer continues its allegedly illegal surveillance activities, the employer’s exposure increases exponentially, which may lead some employers to discontinue the activities without actually finding any wrongdoing.

The General Counsel also announced her intention to implement an interagency approach to address these issues, seeking to use the full force of the federal government and its agencies to assist the NLRB in enforcing these proposals. In doing so, the General Counsel signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor to share information about employer practices and then coordinate enforcement of the General Counsel’s proposals.

If the Advocate General’s proposals are adopted by the Council, which seems likely, then these restrictions will have a significant impact on the ability of employers to use monitoring and management technologies and practices to address performance and compliance issues. employee misconduct during paid hours. This would potentially include a large increase in the number of unfair labor practice charges brought against employers and a shift in the onus on the employer to defend these common management practices.

The Bullard Law Task Force will continue to monitor and advise on these changes and the impact on employers as these issues develop. In the meantime, please do not hesitate to contact Bullard Law for advice and assistance related to these rapidly evolving changes.