Although there is no bright-line answer to which electronic monitoring and automated management practices will result in unfair labor practice charges, National Labor Relations Board (“NLRB” or “Board”) General Counsel (“GC”) Jennifer Abruzzo has made clear that the NLRB will scrutinize such practices to ensure that they do not interfere with employees’ rights to communicate about workplace conditions and organize. In a recent Memorandum (GC 23-02), Abruzzo expressed concerns that technological advances have “dramatically expanded employers’ ability to monitor and manage employees within the workplace and beyond.”
The GC stated: “An issue of particular concern to me is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.” She urged the Board and all NLRB regions to “vigorously enforce” NLRB precedents and labor laws to “protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices.”
In the health care setting, employees may be disciplined or discharged based on data or evidence from electronic monitoring of the workplace, for example:
- Security cameras showing drug activity or other misconduct;
- Email monitoring that reveals pornography or other inappropriate behavior;
- Medical record access logs that show HIPAA violations;
- GPS monitoring of ambulance drivers showing personal detours from job duties;
- Social media scrutiny (typically following a report by a co-employee) that reveals confidentiality breaches or safety threats; and
- Electronic data (such as the number of reimbursement claims submitted or x-rays performed) showing that an employee is much less productive than co-workers.
The GC Memorandum recognizes that monitoring may be done for legitimate business purposes but warns that “electronic surveillance and the breakneck pace of work set by automated systems may severely limit or completely prevent employees from engaging in protected conversations about unionization or terms and conditions of employment that are a necessary precursor to group action.” Factors that will lead to greater NLRB scrutiny include monitoring that 1) involves surveillance or record keeping of protected activity; 2) results in detriment to employees who organize; 3) interferes excessively with employees’ confidentiality interests or privacy rights; 4) monitors activities, break times or nonwork areas in a way the interferes with the ability of employees to communicate privately, take breaks together, engage in solicitation and distribute literature; or 5) surveils employees outside of the workplace.
Health care employers often discipline employees who are unproductive or who take long lunches and excessive breaks. In response, employees often suggest that the employer’s expectations were unrealistic or unfair, staffing levels were too low and productivity pressure impaired patient safety. It remains to be seen how aggressively the NLRB will apply the GC’s idea that electronic monitoring and workplace burdens may interfere with employees’ free time and ability to communicate with co-employees about workplace conditions.
GC Abruzzo suggests the following legal framework:
- The Board should find that an employer has “presumptively violated Section 8(a)(1) where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”
- Where the employer shows that the practices at issue are “narrowly tailored to address a legitimate business need,” the Board should “balance the respective interests of the employer and the employees to determine whether the Act permits the employer’s practices.”
- Where the employer’s business interests outweigh employees’ Section 7 rights, unless special circumstances justify the covert use of technologies, the Board should require that the employer disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so and how it is using the information it obtains.
Practical Takeaways
- Stay tuned for ongoing developments related to this issue.
- In litigation, it is difficult to resolve a balancing test on summary judgment, so lawsuits related to such issues will likely involve significant expense.
- Employers should evaluate whether their electronic monitoring of employees is more intrusive than needed for legitimate business purposes.
- Consult with a trusted legal advisor about complex questions that arise regarding electronic monitoring and surveillance.
- Do not increase surveillance or use electronic monitoring in a new way in response to union organizing efforts.
- Carefully evaluate with legal counsel any employee discipline based on data, video or images from electronic monitoring.
If you have any questions, please contact:
- Mark Sabey at (303) 801-3538 or marksabey@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
