In the past, employers did not actively surveil employees except in two major areas.  First, the internet.  Employers had to make sure that employees were not going to illicit sites.  Second, on factory floors.  For many, insurance coverage played a role in filming employee activity in case of accidents and other like activities.  There is also recording of calls for customer service, for example, that are stated to be used for training purposes. 

To what extent will the government allow surveillance of employees at work?  The National Labor Relations Board (NLRB) general counsel in October 2022 came out with a memo stating their intention to review surveillance at work by employers, as there has been a growing concern that the surveillance techniques are intruding on employees Section 7 rights for organizing unions.  Especially intrusive is described by the general counsel as those that “[i]f the surveillance extends to break times and nonwork areas, or if excessive workloads prevent workers from taking their breaks together or at all, they may be unable to engage in solicitation and distribution of union literature during nonworking time.”

Surveillance techniques do not just include filming or monitoring internet usage.  It also includes monitoring of keystrokes, monitoring of employee work rates, using surveillance cameras as a loss prevention tool, or using GPS tracking devices and cameras to monitor drivers – among other things.

Under the proposed framework forwarded by the NLRB general counsel, any surveillance case that comes up to the Board could require the employer to disclose to employees 1) the technology in use; 2) the employer’s reasons for using the technology; and 3) how it is using the information it obtains.  The employer’s defense according to the general counsel is reviewing to what extent the tools’ use is narrowly tailored to a business need. 

For example, in a recent advice memo by the NLRB’s Division of Advice, cameras were installed in a truck to monitor employees and deliveries.  The insurer recommended for these cameras to be installed and they did not capture audio. Workers could turn off inward-facing cameras.  Employees were notified of the cameras and why they were installed.

The Division of Advice stated that this situation was ok and not intruding employees’ rights. "In these circumstances, the employer's business need — namely to ensure it could continue to secure insurance for its fleet of vehicles — outweighed the employees' [National Labor Relation Act] Section 7 rights, and the employer has already disclosed its technological monitoring including why it is doing so and how it is using the information obtained."

Yet with work from home and TikTok videos of employees bragging about their side hustles or working for two employers at the same time and full-time for both, some employers have had to take the “trust” factor away and update policies prohibiting working side hustles or for another employer during work time.  They could be competing with their current employer for work.  What can be more troubling is that these employees could be violating confidentiality agreements by using company property and /or confidential information to complete the side gigs or work for another company. 

Tools like keylogger software, attention tracking software through webcams, timekeeping software, and geo-tracking are common for many employers, who may not disclose this usage to employees.  If a case comes to the NLRB, it is questionable under this Board whether those monitoring tools would be allowed. 

Therefore, it is important for HR to ensure that their electronic usage and confidentiality policies are updated, and employees are made aware of these policies.  For example, an employee who uses the company computer to do personal emails should be aware that the ownership of the emails is the company’s and not private and confidential to the employee.  And with AI becoming a new tool for monitoring employees, employee morale may take a hit.  Hence, employers should be transparent about monitoring of employees to level set expectations.  Over time, surveillance may be a nonissue for employees.

Source: Washington Post 6/7/23Law360 5/31/23, Seyfarth Shaw 11/1/2022