NLRB’s Top Lawyer Wants to Crack Down on Electronic Surveillance in the Workplace

On Monday, the National Labor Relations Board’s top lawyer issued a new memo announcing she would be pushing for the organization to crack down on electronic surveillance and automated management practices that interfere with workers' labor rights. 

NLRB General Counsel Jennifer Abruzzo said that she was motivated by a concern that employers could deploy workplace technologies to disrupt union organizing or other federally-protected activities.

"An issue of particular concern to me 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,” Abruzzo wrote. “Thus, I plan to urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”

As Abruzzo points out, the NLRB has already established that some forms of electronic surveillance and automated management violate labor laws. Employers can't roll out new surveillance technologies to target workers engaged in labor actions protected by the National Labor Relations Act (e.g. unionizing). This can take a variety of forms: security cameras, wearable as well as in-vehicle tracking devices, private investigators that trawl worker social media accounts and groups, as well as computer and mobile applications that track keystrokes, internet traffic, and communications.

“Some employers use that 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,” Abruzzo writes.

Amazon, currently in the midst of crushing organizing at its workplaces, is probably the best example of a company that also happens to practice these and more forms of electronic surveillance and automated management. Warehouse workers have consistently cited surveillance as a key motivator for the desire to organize, but Amazon has also deployed its surveillance dragnet to envelop drivers in the name of safety as they’re pushed to deliver at impossible and dangerous rates. Amazon has a secret surveillance program to monitor Flex drivers, which was discovered by Motherboard after a job posting was left up and files for the program were accidentally left online. Assisting all this surveillance are additional implements, specifically systems made to track individual workers in the name of productivity, then punish them the second they fail.

It has long been clear that Amazon’s constant churn has been indispensable to it resisting labor organizing efforts, but an important part of that churn traces back to the surveillance technology embedded in every part of its vast logistics empire that allows it to rationalize and justify the constant firings. 

This leads us to Abruzzo's push for what she calls a new framework, in which she wants the NLRB to review surveillance technologies or automated management according to the criteria of whether they'd restrict worker rights or are necessary for a specific and legitimate business need. 

Under this framework, employers would be required to disclose more information about the technology (how is it used, who is using it, how it surveils the workers) and that in instances where the company can prove it is not being used to suppress workers’ rights, step in to manage and mitigate the deployment of that technology. 

"I will urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains," Abruzzo's memo states. "Only with that information can employees intelligently exercise their Section 7 rights and take appropriate measures to protect the confidentiality of their protected activity if they so choose."