The National Labor Relations Board (NLRB) continues to move the needle on its interpretation of the National Labor Relations Act (NLRA) in favor of unions. For example, in Memorandum GC 23-02 entitled “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights,” General Counsel Abruzzo outlined a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that may interfere with Section 7 activity.

What Does the Memo Say?

The memo outlines employees’ right to discuss union organizing campaigns in the workplace. While an employer may not be physically peering around a corner to surveil a union organizing discussion, it may use technology to accomplish the same goal.

Technology can record employee conversations, track employee movements through wearable devices, cameras, radio-frequency identification badges, GPS tracking devices, computer keyboard monitoring devices, webcams, and software that takes screenshots. GC Abruzzo notes that she is concerned 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 keep that activity confidential from their employer.”

To address that concern, GC Abruzzo’s memo calls for employers to rigorously apply Board law in cases involving new workplace technologies. She identified existing NLRB law to include restrictions on employers engaging in surveillance of attempts to organize a union, unlawfully taking pictures of employees engaged in protected activity such as health and safety protests or strikes, reviewing employee social media posting, and implementing technologies in response to Section 7 activities including union organizing.

She notes that “close, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights.”

While most employers have legitimate business reasons for using some form of electronic monitoring, GC Abruzzo noted that the employer’s interests must be balanced against the rights of employees to exercise their Section 7 rights. GC Abruzzo urged the Board to find that “an employer has presumptively violated Section 8(a)(1) where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”

The standard will require an employer to show that the technology is narrowly tailored to address a legitimate business need and cannot be met through means less damaging to employee rights. She also would “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.”

A Recent Case Shows NLRB Reasoning

While the NLRB is requiring employers to disclose the technologies it uses to monitor its employees, employees do not share the obligation to be transparent with management. For example, in Starbucks Corporation, the NLRB held that two Starbucks employees who had covertly recorded conversations of management without their consent were engaged in protected activity under the NLRA.

In this case, two employees engaged in several workplace demonstrations in an effort to unionize two Starbucks stores in Philadelphia, Pennsylvania. Several disputes arose between the employees and Starbucks management, and Starbucks disciplined and ultimately fired the employees. The case moved to a hearing before the NLRB based on numerous unfair labor practice charges.

During the litigation, it became known that the employees had covertly recorded management without their consent. Starbucks argued that even if it had fired the employees in violation of the NLRA, traditional remedies of reinstatement and front pay are barred by the after acquired evidence rule.

To invoke the after acquired evidence rule, the employer must demonstrate: (1) that it was unaware of the alleged misconduct at the time of the employee’s discharge; (2) misconduct was of such severity to justify discharge; and (3) the employer in fact would have discharged a similarly situated employee for that misconduct alone.

Starbucks argued that the covert recordings violated both Starbucks’ policy and Pennsylvania law, which is a two-party consent state. Starbucks’ policy prohibits recording and states that, “Personal video recording, photographing or audio recording of customers or other partners in the store without their consent is not allowed except as protected under federal labor laws.” Starbucks also argued that Pennsylvania has a two-party consent law, which requires all parties of a conversation to consent to the recording.

The NLRB rejected Starbucks’ argument and determined the employees would be entitled to reinstatement because they were engaged in protected activity under the NLRA. The NLRB also found when a state law regulates conduct arguably protected by the NLRA, the state law is preempted by the NLRA.

Bottom Line

This case is notable, as the NLRB decided that covertly recording management is protected activity when the purpose of the recording is used “to document their conversations with management about terms and conditions of employment, including discipline, and to preserve evidence for any future employment-related actions that may arise.”

Employers must therefore use caution when contemplating disciplinary action against employees for violations of employment policies governing recording of conversations in the workplace.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.