Regulators Target Employer Monitoring

​Two federal agencies have agreed to share information related to employers' improper use of surveillance, monitoring and data collection technology.

The National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) will work together to protect workers from surveillance by their employers that could be used to intimidate workers or invade their privacy. Regulators have grown increasingly interested in workplace technology, focusing on issues like AI's potential for discrimination and the use of employer monitoring and data collection technologies.

"Employers' practices and use of artificial intelligence tools can chill workers from exercising their labor rights," said NLRB General Counsel Jennifer Abruzzo. "As our economy, industries and workplaces continue to change, we are excited to work with CFPB to strengthen our whole-of-government approach and ensure that employers obey the law and workers are able to fully and freely exercise their rights without interference or adverse consequences."

"In recent years, many employers have increased their use of employee monitoring technology as a means to promote more efficient operations, particularly in light of the pandemic-induced shift to remote or hybrid working arrangements," said John Klinker, an attorney in the Chicago office of Locke Lord. "However, with its rise in popularity, employee-monitoring technology has come under scrutiny, as evidenced by an enforcement initiative recently announced by the NLRB."

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 workers' rights under Section 7 of the NLRA.

"In short, Section 7 of the NLRA grants employees the right to speak and act collectively to improve the terms and conditions of their employment and working environments," he said.

The October memo "contends that employees' protected rights can be stifled by employers' use of location-tracking technology and productivity-monitoring tools."

Abruzzo expressed concern that employers could use employee-monitoring technology to interfere with workers' ability to engage in protected conduct under the NLRA.

Abruzzo also wrote that employers' surveillance tools such as photography and screen- and voice-recording devices could be used to track employees outside of working hours.

While the NLRB is tasked with enforcing federal labor laws, the CFPB has the authority to bring enforcement actions against employers for violations of 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 latest move by the NLRB to cooperate with other government agencies, following similar partnerships with the Justice Department's Antitrust Division and the Federal Trade Commission signed last year.

Klinker said that the memos alone do not constitute binding legal authority but suggest that employee-monitoring technology will be an area of interest for regulators.

"The NLRB may pursue vigorous investigation and prosecution of unfair labor practice cases involving employee-monitoring technology," he said.