The National Labor Relations Board’s general counsel has expressed concerns that electronic monitoring could impede workers’ rights to organize, while the DOL lists it as a factor indicating control over workers and, thus, possible employee status.

NLRB. Electronic monitoring of employees — such as the use of GPS tracking devices to keyloggers and software that takes screenshots, webcam photos and audio recordings — is coming under scrutiny by the National Labor Relations Board.

General Counsel Jennifer Abruzzo released a memo detailing her concerns Oct. 31.

The memo describes various technologies that are increasingly being used to closely monitor and manage employees.

Abruzzo is concerned their use will interfere with workers’ right to organize “by significantly impairing or negating employees’ ability to engage in protected activity — and to keep that activity confidential from their employer,” Abruzzo said. “Thus, I plan to urge the board, to the greatest extent possible, to apply the act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.”

Section 7 of the National Labor Relations Act protects employees’ right to self-organize; form, join or assist labor organizations; bargain collectively through representatives of their own choosing; and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

The general counsel will urge the board to hold that an employer has presumptively violated the act where an employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the act. If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, Abruzzo 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.

DOL. Meanwhile, the use of electronic monitoring features in the DOL’s proposed rule for determining independent contractors status under the Fair Labor Standards Act. It is among the criteria examined pertaining to the employer’s “nature and degree of control” over the worker.

This factor considers the employer’s control, including reserved control, over the performance of the work and the economic aspects of the working relationship.

Facts relevant to the employer’s control over the worker include whether the employer:

  • sets the worker’s schedule;
  • supervises the performance of the work or reserves the right to supervise or discipline workers;
  • explicitly limits the worker’s ability to work for others or places demands on workers’ time that do not allow them to work for others or work when they choose;
  • uses technological means of supervision (such as by means of a device or electronically);
  • controls economic aspects of the working relationship, including control over prices or rates for services and the marketing of the services or products provided by the worker.

Control implemented by the employer for purposes of complying with legal obligations, safety standards, or contractual or customer service standards may be indicative of control. More indicia of control by the employer favors employee status; more indicia of control by the worker favors independent contractor status.

The DOL announced last week the public comment period for the proposed rule has been extended to Dec. 13 from Nov. 28.