As the pandemic ushered in a new area of remote work, an unseen colleague joined employees in their makeshift home offices: digital spying tools set up by their bosses. Workplace surveillance technology is more common than ever before, but the government just indicated it might intervene.
The top lawyer at the National Labor Relations Board (NLRB) announced this week that she intends to push the job regulator to do everything it can to step in and protect workers from monitoring and tracking.
“Close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” said Jennifer Abruzzo, general counsel at the NLRB, in a memo [PDF]. “I plan to urge the Board to apply the Act to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices.”
Aside from using settled law to penalize employers for surveillance that’s already unlawful, Abruzzo’s proposal would require employers to disclose when and how they’re monitoring workers. Employers would have to justify why the surveillance is necessary for legitimate business needs, and explain how the tracking would be limited to address those needs.
Abruzzo’s primary concern is how surveillance interferes with workers’ rights to to engaging in union organizing. The NLRB ruled in the past that certain kinds of tracking are already illegal, such as surveillance that implies the possibility of retribution for union activities. Employers can’t monitor certain organizing efforts whatsoever. But Abruzzo argues the NLRB needs to go even farther, as even the fear of potential surveillance can inhibit workers rights.
Aside from using settled law to ban surveillance that’s already unlawful, Abruzzo’s proposal would require employers to disclose when and how they’re monitoring workers. Employers would have to justify why the surveillance is necessary for legitimate business needs, and explain how the tracking would be limited to address those needs.
That solution would likely help worker privacy beyond what’s necessary to protect legal rights. If you know you’re being spied on, it’s easier to defend yourself.
Workplace surveillance is already used for union-busting efforts. Amazon and Walmart have both used the tech to interfere with organizing, and Google has a system to automatically monitor meetings of over 100 employees, according to Newsweek.
These practices may already be against the law, and Abruzzo argues the NLRB should go beyond establishing a new framework and just step in to use the power it has to enforce the rules. “Under settled Board law, numerous practices employers may engage in using new surveillance and management technologies are already unlawful,” she said.