We previously posted about employer use of Artificial Intelligence, AI, and the emerging legal issues associated with such tools. Recently, the National Labor Relations Board General Counsel issued GC Memorandum 23-02, which outlined her view that the use of electronic monitoring and artificial intelligence can run afoul of the National Labor Relations Act. The memo states that surveillance and other algorithmic-management tools may 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.”
The Board currently uses a balancing test to weigh an employer’s justification for surveillance against the potential interference with employees’ right to engage in concerted activity in the workplace. The Board has held that without proper justification, certain surveillance of employees engaged in protected activities violates the Act. Also, under current case law, the use of existing security or other technologies in response to union organizing activity can violate the Act.
After outlining the increased use of monitoring tools, including cameras, GPS, mobile devices and wearable devices, and noting the increased use of artificial intelligence in the workplace, the General Counsel outlined a number of ways that the use of such electronic monitoring and artificial intelligence could violate the Act. She concluded that constant surveillance and management through electronic means may threaten employees’ rights under the Act by severely limiting or completely preventing employees from engaging in protected conversations about unionization or terms and conditions of employment.
The General Counsel stated that she will “urge the Board to ensure that intrusive or abusive methods of electronic surveillance and automated management do not unlawfully interfere with, restrain, or coerce employees in the exercise of their Section 7 rights by stopping union and protected concerted activity in its tracks or preventing its initiation.”
Specifically, she stated that she will urge the Board to find that an employer has violated Section 8(a)(1) of the Act if the employer’s surveillance and management practices, would interfere with or prevent a reasonable employee from engaging in activity protected by the Act. Under the General Counsel’s framework, the employer could attempt to justify its surveillance and management practices, and if the employer’s business needs outweigh employees’ Section 7 rights, the GC 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.
Electronic monitoring and artificial intelligence are increasingly common in the workplace. These tools can be extraordinarily beneficial employers for whole host of reasons. However, if successful, the General Counsel’s new framework will severely restrict employers’ efforts to monitor employee conduct and improve efficiency, as well as slow the growth of “smart” workplaces in the United States.