Employers face stringent oversight disclosure in Labor Board plan

The requirement for an employer to disclose electronic monitoring of workers in a proposal from the National Labor Relations Board’s General Counsel builds on a trend in recent regulation of technology-enabled workplace practices.

NLRB General Counsel Jennifer Abruzzo has called for a new legal norm to invalidate employee surveillance that tends to interfere with workers coming together to help and protect each other, a right protected by Section 7 of the national labor relations law. If an employer’s legitimate business reasons outweigh these rights, the company should inform workers of its practices under the Abruzzo proposal.

The proposed disclosure mandate follows a notice requested in the Equal Employment Opportunity Commission guidelines and a recent New York City law on the use of artificial intelligence in the workplace. hiring, said Jennifer Betts, an attorney at executive firm Ogletree Deakins Nash Smoak & Stewart PC. .

“But what’s interesting is that Abruzzo isn’t just asking for a standard disclosure, they would also be asking for the employer’s reasons and how they’re used,” Betts said. “She levels it by adding extra layers.”

Detailed information about an employer’s monitoring program is needed so workers can keep their organizing activities confidential, Abruzzo said in an Oct. 31 memo outlining his plan.

Abruzzo’s proposal appears to maximize organizational safeguards, providing for disclosure when an employer successfully shows they have a business reason for their surveillance program, said Matthew Fontana, a lawyer who represents employers at Faegre Drinker Biddle. & Reath LLP.

“The attorney general seems to have devised a test that says, ‘Heads, your Section 7 rights are justified, and tails, your Section 7 rights are justified,'” Fontana said.

Abruzzo’s proposal warns employers of its emphasis on electronic worker monitoring. Although its framework is not yet legally binding, it will be an enforcement policy for agency attorneys prosecuting unfair labor practice cases.

To become law, the NLRB would have to adopt the Abruzzo plan in a ruling in an individual case.

Benefits of disclosure, obstacles

Employers generally prefer to be transparent about their employee monitoring practices, said Zoe Argento, co-chair of the privacy and data security practice group at management firm Littler Mendelson PC.

“There’s not much value in surveillance if employees don’t know they’re being watched,” Argento said.

Such disclosures can be a heavy administrative burden depending on the size of the company and the technology it uses, Argento said. For example, disclosures that require workers to sign as acknowledgments can be a heavy burden for a company with ten thousand employees, she said.

Depending on the technology, a disclosure required by the NLRB could be onerous, Betts said.

The Abruzzo plan also covers management practices driven by artificial intelligence and algorithms. How these technologies work can be difficult for employers to understand, which can make it difficult to meet the proposed requirement, particularly if a company obtains its technology from a third-party vendor, Betts said.

Abruzzo said she would urge the NLRB “to protect employees, to the extent possible, from intrusive or abusive electronic surveillance and automated management practices that would tend to interfere with Section 7 rights.”

However, a disclosure warrant may not have the intended benefit.

“There’s always a risk with any disclosure rule that disclosure happens so superficially that employees don’t consider it — imagine disclosure mixed in with all the other onboarding documents,” added Charlotte Garden, law professor at the University of Minnesota who has written about the organization of work in the context of workplace surveillance.

Still, even a few privacy-conscious workers could use the information to organize against intrusive surveillance and raise awareness among co-workers, Garden said.

Abruzzo’s proposed framework, including the disclosure element, would not end intrusive surveillance, but it would provide a counterweight to even more intense forms of employee surveillance than companies currently employ, Garden said. .

AFL-CIO general counsel Craig Becker said Abruzzo has started a conversation within the agency about how new technologies can interfere with workers’ rights.

“The case-by-case approach she suggests for the development of law in this area, together with broader collaboration with other expert agencies, is a prudent and appropriate way to approach this complex and important,” Becker said.

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