The NLRB does not like employers spying on their employees. Its General Counsel released a memo this week which cautions that AI and surveillance tracking employees could chill Section 7 rights. That old chestnut–the right to discuss work conditions and to organize in nearly any workplace–Section 7. General Counsel Abruzzo will ask the Board to adopt a framework where an employer presumptively violates Section 7 of the NLRA when its surveillance and practices, viewed as a whole, prevent a reasonable employee from engaging in protected activity. Yikes.
What if your business wants to continue to use the technology? Of course you can but the NLRB is setting a high bar: Employer’s interests must be balanced against employee’s rights under the Act. The press release announcing the memo states: If business needs outweigh employees’ rights, and unless employers demonstrate that special circumstances require covert use of the tech, “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 said. This is not a rule yet but the use of the memo points to that goal. When that happens, take note for a policy or handbook update.
The NLRB is not alone in sounding the alarm over the use of AI and surveillance. Many states and even local authorities have restrictions as well. Last month, the Biden Administration released a Blueprint for an AI Bill of Rights as guide for business use of these tools. In March, the EEOC and DOJ published technical assistance that noted blind reliance on technological tools in employment decisions may violate civil rights laws.
Brave new world got you down? Questions about your workplace practices here? Need a policy or handbook update? We can help. Contact us to be ready for any backlash the General Counsel and others have unleashed.