The NLRB takes on bossware in a new memo

The big bosses—a/k/a federal agencies—have noticed the proliferation of bossware, and they are not amused. The National Labor Relations Board has announced its opposition to this practice in a memorandum. Employers deploying employee monitoring software, or considering it, should be wary, as they could find themselves in trouble in the future.

Private eyes

Companies have always counted on technology to improve productivity. But bossware, a derisive term for productivity trackers like GPS trackers, web cameras, smart watches, smartphone apps, radio-frequency identification badges, and keystroke trackers, is in a class by itself. That’s primarily because while bossware can certainly improve employees’ productivity, but it also invades their privacy. In addition, bossware might not even provide you with key performance measures, as strokes at a keyboard don’t necessarily indicate productive work being done.

In a new memo, the National Labor Relations Board outlines its intention to protect employees from bossware and other automated management practices. Worse: The NLRB reminds employers it’s signed memoranda of understanding with the Federal Trade Commission and the Department of Labor, so whatever it decides will be shared.

They’re watching you

The NLRB is concerned with two issues:

  • Whether the potential for employers’ surveillance and other algorithmic-management tools interfere with employees’ rights under § 7 of the National Labor Relations Act to organize and bargain collectively.
  • Whether surveillance contributes to discrimination against employees for joining in concerted activities under § 8 of the NLRA.

Remember: Employees don’t have to join a union to be covered under the NLRA.

The NLRB’s new framework presumes employers violate the NLRA when their surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in protected activities.

While the NLRB memo was a bit vague on what it will do and what employers can do without running afoul of §§ 7 and 8 of the NLRA, it was a lot more detailed when describing the surveillance activity it already considers to violate the NLRA:

  • Continuing to track employees’ whereabouts and communications using employer-issued phones, wearable devices, or apps installed on workers’ own devices after hours, in nonwork areas, or during break times.
  • Reviewing security-camera footage or employees’ social media accounts or creating the impression that these things are being done.
  • Relying on artificial intelligence to screen job applicants or to issue discipline if the underlying algorithm makes decisions based on employees’ protected activity. Here, the NLRB notes that the employer and a third-party software provider may violate § 8.

They see your every move

Since the NLRB wants to make this a presumption, you’re essentially guilty until proven innocent.

The burden will be on you to demonstrate how your managerial needs outweigh employees’ § 7 rights. And even if you meet this burden, the NLRB would still require you to disclose to employees the technologies you use to monitor and manage them, your reasons for doing so, and how you’re using the information you obtain.

To pass muster, your surveillance policies must be narrowly tailored to address a legitimate business need. In other words, your management policies can’t be met through means less damaging to employees’ rights.

Example. It may be appropriate under certain circumstances to monitor an employee you think is working another job while working for you. But it may not be appropriate to monitor the entire department.