War declared on bosses using 'omnipresent surveillance' tools to quash union efforts

NLRB told to crack down on tech that tramples right to organize

America's labor watchdog says it intends to crack down on the growing use of technology by bosses to closely monitor and measure staff, as it is feared this software may be used to thwart efforts to organize and unionize.

In a memo published Monday, the US National Labor Relations Board (NLRB)'s General Counsel Jennifer Abruzzo said she was particularly concerned about "the potential for omnipresent surveillance and other algorithmic-management tools to interfere" with workers' rights to organize, which is protected by the National Labor Relations Act (NLRA).

Crucially, she fears these tools may prevent folks from privately and confidentially discussing and planning unionization efforts at work, which they are generally entitled to do. As such, she wants the labor watchdog to be ready to punish businesses that trample over these rights using these tools as "more and more employers take advantage" of employee-monitoring software.

Abruzzo's memo [PDF] covers not only the types of technologies she is concerned about – such as monitoring systems used by companies including Amazon to scrutinize warehouse workers – but also with how such tech is being used, namely to keep tabs on employees. In a statement from the board, we're told:

Some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices. And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday.

"Employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees' ability to engage in protected activity," Abruzzo thus concluded. 

She also cited research by Uncle Sam's Consumer Finance Protection Bureau (CFPB) that found an app used by gig workers to track the time they've worked across multiple platforms was continuing to monitor them outside of working hours. If that wasn't enough of a privacy violation, that same software was also selling access to the data it gathered to employers, insurers, and financial institutions. 

Abruzzo is concerned that bosses could ultimately use all of this data, collected internally and externally, to stymie people's rights to freely self-organize under the NLRA, and in doing so are committing unfair labor practices as defined in Section 8 of the law.

To that end, Abruzzo urged the board to find an employer in presumptive violation of Section 8 if "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." In other words: take action if monitoring software could be used to undermine people's protected unionization efforts.

Workplace surveillance software isn't entirely new, though became a booming concern during the COVID-19 pandemic when executives either installed, or were considering installing, monitoring software on their employees' machines to check up on people working from home.

That hasn't sat well with employees, who have reported an erosion of trust in their managers due to the decision to track their activities. 

Whether the NLRB would use labor organization rights as a vehicle to more broadly regulate an employer's ability to monitor their employees isn't clear. We've asked and will update this story if we learn more. 

Abruzzo did say concerns over the use of surveillance software in the workplace aren't confined to her agency. The Federal Trade Commission, CFPB, Department of Justice, Equal Employment Opportunity Commission, and Department of Labor are all "working to combat a range of harms employers inflict on workers using such technologies," she noted. 

"Agreements that we have signed with many of these agencies will facilitate information sharing and coordinated enforcement on these issues," Abruzzo added. ®