A significant concern for managers of remote workers is the ability to engage, manage and monitor performance and productivity – and some healthcare employers have turned to technologies like tracking employee keystrokes, capturing screenshots, and on-camera requirements for employees during work hours.
This has caught the attention of the National Labor Relations Board’s General Counsel Jennifer Abruzzo, who recently issued a memorandum seeking to broaden of the National Labor Relations Act (the “Act”) and limit the electronic surveillance of employees.
“An issue of particular concern to [her] 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.” Memorandum GC 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights” (released Oct. 31, 2022).
Under well-established law, an employer can be found to violate Section 8(a)(1) of the Act if it implements new monitoring technologies in response to union and other protected activity, uses existing technologies to discover such protected activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things.
In the memo, GC Abruzzo requests the Board adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts. GC Abruzzo urged the Board to find that employers presumptively violate the Act if their surveillance technology and management practices, as a whole, tend to interfere with or prevent employees from engaging in protected concerted activity. The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the Board would weigh the employer’s interests against its employees’ interests. Even in cases where the employer’s interests outweigh the employees’ interests, the GC would require employers to disclose how employees are being monitored, absent special circumstances. Notably, the scrutiny called for in the memo applies to all employers subject to the Act, not just employers with union-represented workforces.
In addition to the flurry of labor activity in healthcare, this is one more area to keep an eye on as healthcare employers focus on growing and managing remote workforces. Please contact the Jackson Lewis attorney with whom you usually work or a member of our Healthcare Group if you have questions or need additional guidance.