The general counsel of the National Labor Relations Board (NLRB) issued an important memo that calls for regulators to protect workers against what she described as “unlawful electronic surveillance and automated management practices.” The NLRB is the independent federal agency charged with defending the collective bargaining rights of workers. In keeping with its mission, it described its plan to enforce currently existing law. It will urge that the board itself and relevant federal agencies create a new framework for settling labor law principles in the arena of workplace technology.
How does this work? The NLRB protects the right of workers under Section 7 of the National Labor Relations Act to organize and discuss joining unions with their coworkers without retaliation and the board’s General Counsel rightly suggests that surveillance of workers by their bosses can lead to unlawful retaliation, as well as a chilling effect on workplace speech protected by the NLRA.
“It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights … by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” General Counsel Jennifer Abruzzo said in her letter. She added she will urge the board to act to "protect employees from intrusive or abusive electronic monitoring and automated management practices" that interfere with organizing rights. The general counsel's memo serves as a marker for future cases considered by the NLRB. Traditionally, the opinion of the NLRB's general counsel has a significant effect on how the board rules on cases it considers. This means that, should workers wish to file a claim with the NLRB along these lines, the board would take this opinion into account.
While worker privacy has been considered within general consumer privacy bills, workplace privacy rights function differently than those in many other contexts. A worker often cannot walk away from a camera pointed at their workstation. And while a consumer may feel they aren’t really “consenting” to data collection when they use a product or service, they generally have the option to go to a competing product. Workers don’t; saying “no” could cost them their livelihood. Therefore workers are set up to potentially lose certain rights during the workday.
Abruzzo, in writing her memo, said that "[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights."
In the workplace, electronic surveillance and the breakneck pace of work set by automated systems may severely limit or completely prevent employees from engaging in protected conversations about unionization or terms and conditions of employment that are a necessary precursor to group action. If 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 or distribution of union literature during nonworking time. And surveillance reaching even beyond the workplace—or the use of technology that makes employees reasonably fear such far-reaching surveillance—may prevent employees from exercising their Section 7 rights anywhere.
Finding ways to protect those rights in the diversity of workplaces across the country is a bigger question, and we look forward to seeing Abruzzo's forthcoming framework, and the way this opinion is represented in future rulings.
EFF believes Abruzzo was right to raise concerns about this technology and urges the National Labor Relations Board to consider seriously the harms that workplace surveillance technology poses to workers and to organizing. Abruzzo is correct in identifying the risk that such technologies pose to organizing. EFF also has broader concerns about the effect such surveillance has on worker privacy and autonomy.
Earlier this year, we joined California’s leading labor groups to support A.B. 1651, authored by Assemblymember Ash Kalra, which would have taken important first steps in providing workers with information about monitoring in the workplace. The NLRB is just one regulator paying close attention to worker surveillance. The Federal Trade Commission has begun considering making rules around commercial surveillance, and in their recent period for public comment, the FTC sought to consider workplace surveillance as a part of their rulemaking process. The Electronic Frontier Foundation submitted our comments, as have many of our allies, supporting the commission’s plan to have a rule that is inclusive of the workplace. Strong worker protections through the FTC rule would align the commission with the NLRB’s stated mission in its memo to enforce existing protections in this space and to foster inter-agency cooperation to protect the rights of workers from punitive and harmful workplace technologies.
We echo Abruzzo in encouraging regulators to look at worker surveillance both in the workplace and for those working remotely. As we have previously discussed, workers are also often asked to install “bossware” on their work—or sometimes personal—devices. Such software may be aimed at helping employers. But, in practice, it can put workers’ privacy and security at risk by logging every click and keystroke, covertly gathering information for lawsuits, and using other spying features that go far beyond what is necessary and proportionate to manage a workforce.
Workers are not consumers when they’re on the job, and so we should not expect existing consumer privacy frameworks to adequately address worker surveillance.. But unions, labor researchers, rank and file workers, and the NLRB offer essential input into both how to protect workers with inclusive consumer protections, and through workplace protections in particular. Our privacy shouldn’t stop when we clock in. Workers should not feel pressure to be scrutinized in their workplace or in their own homes to keep their jobs.