Posted on 11/03/2022 10:50:53 AM PDT by aimhigh
In sweeping new proposals, the National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo, announced her intention to limit employers in their ability to rely upon commonly used electronic monitoring and management technologies to monitor employee misconduct and performance issues. If adopted by the Board, the General Counsel’s proposals would have an enormous impact on employers in the exercise of their legitimate business interests to manage and monitor employee performance, during work hours, and impose appropriate discipline.
Under the previous NLRB framework, employers were free to adopt technological changes that allowed them to more closely monitor employee work activity with no suggestion whatsoever that such monitoring activity was somehow improper or a violation of the National Labor Relations Act (NLRA). In those rare instances where employers “crossed the line,” the union or aggrieved employee would be required to file an unfair labor practice charge. The charge would need to specifically describe the activity the employer was engaging in that unlawfully infringed upon the employee’s rights to join, support, or assist the union or union organizing, or to act in concert with each other regarding wages, hours, and working conditions. In doing so, the employee or the union filing the charge had the burden of proof to describe what activities the employer was engaged in that violated their rights and to provide evidence that a violation actually occurred. In other words, a violation would not be presumed to have occurred until the union or complaining employee provided a prima facie case that the law had been violated. The employer simply had to defend itself. If the employee or union could not present any evidence that a violation had occurred, then the unfair labor practice charge would be dismissed without the employer having to provide any evidence that it had acted properly in the situation that was the subject of the unfair labor practice charge.
The employer also had free rein to adopt any number of electronic and digital monitoring technologies to uncover employee misconduct or performance issues. Since the employer was paying these employees to perform certain assigned work functions, the employer had the right to monitor employee activities to confirm that they were performing their work assignments appropriately, timely, efficiently, and were not engaged in other non-work-related activity that was not an essential part of the job for which they were being paid to perform.
The General Counsel’s new memorandum turns these standards upside down. The employer is now the party obligated to prove that it did not violate the law by adopting its monitoring technologies. According to the General Counsel’s memorandum, the mere adoption of such technologies seems to suggest a presumption that the employer’s monitoring activities are improper, thus requiring the employer to prove it is not guilty of an unfair labor practice charge rather than the other way around.
The employer’s use of increasingly more sophisticated monitoring technology has been the subject of numerous NLRB decisions over the years, and so long as the employer did not engage in any type of unlawful behavior, and the employer’s monitoring activities were work-related and did not unduly infringe on employee’s conversations or activities, during paid but non-working time, such as breaks or lunch periods, and on unpaid time, such as before or after employee shifts, then the Board generally had no issue with such monitoring activities unless there was a specific event a union or employee could point to as a violation of the law.
The General Counsel’s proposals depart from the previous legal framework as she seeks to greatly increase restrictions on employers relating to the use of electronic monitoring and management technology and practices. Under the General Counsel’s newly proposed framework, the Board would now start with a presumption that employers had violated the National Labor Relations Act whenever the Board finds that the employer’s actions, viewed as a whole, would tend to somehow interfere with or prevent a reasonable employee from engaging in activity protected by the Act. Furthermore, in the event the employer asserts that there is a legitimate business need, then the General Counsel proposes that the burden should shift to the employer to demonstrate the existence of special circumstances requiring the management practice or use of monitoring technology. Under that scenario, employers would also be required to: 1) disclose to employees the technology and practices used to monitor and manage employees during their work time; 2) provide the reasoning for the management practices; and 3) describe how the employer is using the information.
The General Counsel has instructed all NLRB regional offices to notify the NLRB’s Division of Advice of any situations where the employer’s monitoring activities could run contrary to her asserted concerns. The Division of Advice is a part of the NLRB’s Office of the General Counsel which is tasked with providing guidance to the NLRB’s regional offices on difficult and novel issues arising in the processing of unfair labor practice charges. This new guidance will have the practical effect of greatly increasing unfair labor practice filings while unions try to determine exactly what the Board will consider to be unlawful. This increased volume will likely result in long delays in the processing of unfair labor practice charges, meaning the employer will potentially have an unfair labor practice finding hanging over their heads for months, and sometimes years, while Advice sorts through what is and is not an unfair labor practice. Of course, if the employer continues its alleged unlawful monitoring activities, the employer’s exposure grows exponentially, which may cause some employers to forgo the activities without any actual finding of wrongdoing.
The General Counsel has also announced her intention to implement an interagency approach to address these issues, seeking to utilize the full force of the federal government and its agencies to aid the NLRB in the enforcement of these proposals. In doing so, the General Counsel has signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor to share information relating to employers’ practices and then coordinate on enforcement of the General Counsel’s proposals.
If the General Counsel’s proposals are adopted by the Board, which appears likely, then these restrictions will greatly impact employers in their ability to use monitoring and management technologies and practices to address employee performance and misconduct issues during paid time. This would potentially include a large increase in the number of unfair labor practice charges filed against employers and a shifting of the burden to the employer to defend those common management practices.
Bullard Law’s Labor Group will continue to monitor and advise on these changes and the impact on employers as these issues develop. In the meantime, please do not hesitate to reach out to Bullard Law for guidance and assistance related to these rapidly developing changes.
Employers would be prohibited from measuring performance and productivity?
Well, I’ve been doing my job from home for over two years without needing to go to the office. Reckon this means the company will force us all back into the office, so I can take a paycut paying for insanely priced gas to do the same job I’ve been doing quite well for over two years so that they can babysit me more closely.
I’m sure the NLRB will cite Congressional legislation that gives them the specific authority to do this.
Fine, just send your plan through Congress.
The Administrative State strikes again.
Agreed—remote work is totally dependent upon such monitoring.
A few weeks ago I got a list of my employees sorted by how long it has been since they had been at work. This was to be used to show leadership how our transition from telework to in person work was going.
My very best employee was listed as having not been at work since April. The VP wanted me to explain. Well, that employee was in the office with me when I got the email.
We walked up to the VPs office and told him his data was suspect.
Not really, in my experience.
When I was working remotely my employer had the same criteria for productivity as when I was in the office. Make your numbers, no problem.
I’ve heard of this happening at my wife’s place of employment. Some supposed report said one of her co-workers had not logged in, or been at the office for several weeks; the person was either online teleworking or there every day but one (where she was sick).
My employer has the right to my maintaining productivity, and the right to fire me if I am proved to misbehave, that is all.
It’s none of the government’s business. Now, on the other hand, employers who monitor employees email/web usage are probably not managing their employees well. It’s fine to have web proxies to stop employees from accidently visiting malicious sites, but good managers know what their employees are producing and know how to keep their employees busy doing meaningful work so there isn’t time to screw around. A busy worker is a happy worker. It’s a matter of focusing on the correct problems.
I'm sure that the employment contract states that employers have the right to verify that the employees are fulfilling their obligations per the terms of the contract.
Is this labor board now suggesting that employers are not allowed to verify that their contracts are being executed properly?
-PJ
Yep, when I log into work, I immediately join my team chat, start working issues, and communicating actively with coworkers. IF they try to say “You didn’t work”, I just have to tell them to review all tickets from my team for the last two years and find my electronic signature on all the issues I’ve worked.
I dont mind the FACT of monitoring, but I do want employers to be required to disclose what is being monitored.
Directive 10-289 is here
If they don’t trust me, then they should fire me. That’s how I would roll if situations were reversed.
It comes back to the classic argument- if you have an employee who is doing 150% of what their co-workers are, with higher quality, and they screw around on FB (or FR) a couple of hours, is there an issue? It depends on if one is hired to produce (I am) or if one is hired to be (or look) busy. But some places put a higher value on LOOKING busy than on getting things done.
Some micromanagers can’t *stand* the sort of person who can bang out as much work in 3 hours as anyone else can in 8 or 10. They are usually the reason the best people leave the job. My best friend’s current boss doesn’t give a damn; it’s funny to hear about the less productive droids trying to tell the boss that ‘Chris is doing this or that on his computer’; Chris has already done more work by 11 (and better work) than the whiner will all day.
Too bad they can’t cite an enumerated power for the legislation.
Yes, years ago I had a manager who loved to foster distrust and dissension among the team. “Some people are *concerned* that they see you surfing news sites”. “Some people”? “Concerned”? Okay so what you’re telling me is I have to watch my back for all the little tattle-tales that are stabbing me in the back and telling stories.
And those little Karens are are the ones who need every minute of the day to do 3/4 of the work they should be able to handle, and it’s usually piss-poor quality.
You can either do the work in a timely manner with acceptable quality, or you can’t. The complainers usually can’t.
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