By: Scott A. Hagen
On October 31, 2022, Jennifer Abruzzo, General Counsel of the National Labor Relations Board, issued GC Memorandum 23-02, dealing with electronic monitoring in the workplace.
The General Counsel issued the memo in reaction to developments over the past several years in the types of electronic monitoring that are now available to employers, which essentially allow employers to exercise nearly “omnipresent surveillance” of their employees. The Board has long viewed excessive surveillance with great suspicion because of the possibility that it could be used to spy on employees’ protected concerted activity. Moreover, the presence of such surveillance, if known to employees, can itself inhibit employees from holding workplace conversations about their wages, hours, and other terms and conditions of employment.
Employees, including employees in non-union workplaces, have the right under the National Labor Relations Act to talk with each other about their working conditions, and act together to protect and improve those working conditions. Employers are barred from spying on such activities, disciplining or terminating employees who engage in such activities, or taking other actions that may reasonably inhibit employees in their exercise of these rights.
The General Counsel Memo suggests that the Board will take aggressive action to protect and enforce these rights. Employers should take care not to use technology to monitor all conversations and interactions between employees. Employees have the right to talk about their working conditions while they are at the workplace. They can do so when they are on break, and before and after their shift. Furthermore, if working conditions permit conversations between employees during working time on non-work topics such as sports, politics, fashion, and the like, then conversations concerning working conditions must also be permitted.
Employers must not take any action against employees that would limit or inhibit their right to engage in such discussions. First, although employers may limit non-work conversations during working time, they must not discriminate against discussions on working conditions. In other words, if an employer allows employees to talk about non-work topics during working time, the employer must also allow employees to talk about their working conditions, including their wages.
Second, employers should not prohibit employees from organizing a group text string or other group discussion forum, especially if employees use such an electronic forum to talk about non-work issues.
Third, employers should take care in the use of electronic monitoring to avoid such an omnipresent surveillance of employee activities that they feel unable to communicate with each other on the topic of their working conditions.
Finally, employers need not completely eliminate all electronic monitoring. In most situations, employers may use cameras to view employees’ actual working performance, although any monitoring of employee communications is much more likely to violate the NLRA. Any plan use electronic monitoring should be carefully reviewed with labor counsel before implementation.
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