Two federal agencies have agreed to share information regarding the misuse of surveillance, monitoring, and data collection technologies by employers.
The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) will collaborate to shield employees from employer surveillance that could be used to intimidate or invade their privacy. Regulators have taken a greater interest in workplace technology, focusing on issues such as the discriminatory potential of artificial intelligence and the use of employer monitoring and data collection technologies.
NLRB General Counsel Jennifer Abruzzo stated, “Employers’ policies and use of artificial intelligence technologies might discourage employees from exercising their labor rights.” “As our economy, industries, and workplaces continue to develop, we are delighted to work with CFPB to enhance our whole-of-government approach and guarantee that businesses respect the law and employees are allowed to completely and freely exercise their rights without interference or unfavorable repercussions.”
John Klinker, an attorney in the Chicago office of Locke Lord, stated: “In recent years, many businesses have boosted their use of employee monitoring technologies to promote more effective operations, particularly in light of the pandemic-induced move to remote or hybrid working arrangements.” “However, as its popularity has increased, employee monitoring technology has come under scrutiny, as evidenced by a recently announced NLRB enforcement initiative.”
Klinker explained that Abruzzo, the person ultimately responsible for investigating and prosecuting unfair labor practice cases under the National Labor Relations Act (NLRA), issued a memo in October 2022 advocating for a crackdown on employee-monitoring technology if it is used to interfere with Section 7 workers’ rights.
“In brief, Section 7 of the NLRA provides employees the freedom to speak and act collectively to better the terms and circumstances of their employment and working environments,” he stated.
The October memo “argues that employers’ use of location-tracking technology and productivity-monitoring tools can impede employees’ protected rights.”
Abruzzo raised worry that companies may utilize employee surveillance technologies to prevent employees from engaging in NLRA-protected activities.
Abruzzo also wrote that employers’ surveillance tools, such as cameras and screen- and voice-recording devices, could be used to monitor employees outside of work hours.
The NLRB is responsible for enforcing federal labor laws, whereas the CFPB has the authority to bring enforcement actions against employers who violate credit reporting laws.
The CFPB and NLRB said they are concerned that “companies that own the surveillance tools might sell worker data to financial institutions, insurers, and other employers. Certain actions by these surveillance companies may be violating the Fair Credit Reporting Act along with other consumer financial protection laws.”
The information-sharing agreement is the NLRB’s most recent effort to collaborate with other government agencies, following similar agreements signed last year with the Antitrust Division of the Justice Department and the Federal Trade Commission.
Klinker stated that the memos alone do not constitute binding legal authority, but they do suggest that regulators will be interested in employee monitoring technology.
“The NLRB may investigate and prosecute unfair labor practice cases involving employee monitoring technology with vigor,” he said.