JBS and Tyson Foods both announced recently that they have invested in smartwatch technology to monitor employees in an effort to reduce injuries. These new practices could run afoul a recent proposal by the general counsel to the National Labor Relations Board (NLRB) which would presume such devices would violate employee rights under the National Labor Relations Act. (NLRA)

The NLRA protects the rights of employees to form unions and address working conditions also known as protected concerted activities. The NLRB general counsel believes that monitoring devices could discourage employees from engaging in those protected activities.

Employee monitoring in workers’ compensation

Employee monitoring for the purposes of injury reduction sets up a potential conflict between concerns over workers’ compensation and the rights of workers to organize and maintain dignity in the workplace. Monitoring and tracking injuries is one part of safety and one reason most states and the federal government require employers to track work injuries. Some employers have fought federal rules about injury record keeping.

But keeping data about injuries is only useful if it makes new discoveries and leads to changes in practices. At least when it comes to meatpacking, the workplace safety problem is largely about overuse injuries due to line speed. This is a long understood problem, so I question the utility of forcing meatpacking employees to wear monitoring devices for the purposes of reducing injuries when the solution to reduce injuries is well-known.

Use of employee-monitoring devices in workers compensation

What impact will employee-monitoring devices have in workers compensation? It depends on the state. I think the impacts could be minimal in Nebraska. Nebraska applies a contributing factor standard to causation which is a standard that generally favors employees. While employer data about how an injury could have or could not have happened can be persuasive, that data often doesn’t  take into consideration about specific details about why an employee may be more vulnerable to injury. In a contributing factor analysis, those individual factors are important. In contrast, that data may have more weight in states where causation standards are more favorable to employers.

Can the NLRB effectively regulate employee monitoring?

Though the National Labor Relations Board received a budget increase in the latest spending bill, that was the first time the NLRB had a budget increase since 2014. I believe there are real concerns over the NLRB’s ability to effectively curb employee monitoring because of staffing issues. Employees don’t have the ability to bring private suits, so they need to file administrative claims. I believe any successful claim would have to show how employee monitoring actually impaired the ability of employees to engage in protected activities.

On the upside, a recent NLRB decision could increase penalties against employers who violate the NLRA. Of course, this assumes federal courts will uphold the ability of the NLRB to levy increased penalties against employers.

Despite the possible shortcomings of the NLRB enforcement, I believe that it is good news for workers in Nebraska. Recently, the Nebraska Supreme Court made it more difficult for workers who bring workers’ compensation cases for also bringing state law employment claims. Federal law provides a parallel and unblocked avenue for injured workers in Nebraska to protect their rights.

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