The National Labor Relations Act and Its Impact on Human Resources Policies

Practitioners in the modes are familiar with the role administrative agencies can alter the shape of compliance obligations through administrative decisions and rulemakings. The National Labor Relations Board (NLRB) is similar in most respects. One of these is the authority of the Board to assess part decisional practice and, in a decision, issued a new rule, as a case holding, without the necessity for formal rulemaking. The most well-known example is the case of John Deklewa & Sons, Inc. (creating a new test for when a collective bargaining agreement is revokable).

The second area in which NLRB practice differs is that opinions of the General Counsel may be rendered on an advisory basis which function as enforcement guidelines for the regional office in accepting and processing cases.  Although framed in terms of interpreting the Act, such opinions, usually issued as General Counsel Memoranda, effectively write the law that would prospectively apply or urge the Board to issue rulemaking and/or decisions reflecting these principles.  

Electronic Communications, Privacy and Employer Rights

In a new memo, NLRB General Counsel Jennifer Abruzzo announced her intention to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices through vigorously enforcing current law and by urging the Board to apply settled labor-law principles in a new framework.  See October 31, 2022.

Various technologies are increasingly being used to closely monitor and manage employees. AS the GC notes:

[S]ome employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices.  And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday.
It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” said General Counsel Abruzzo. “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 act protects speech in the workplace focusing on its “concerted” or “group” character.  In an electronic context, the concept of “group” has become challenging to define and the dividing line between human resource management, employer rights and the relationship to employees is being rebalanced. The key to this approach is to presume unlawful conduct has occurred “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.” Employers would be required to affirmatively “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.”

The New “Captive” Audience Doctrine and Mandatory Meetings

There is a troublesome narrow line between how management functions and how and when employee listening becomes an obligation to comply as a condition of employment. In part, the GC seeks to reverse doctrine from the previous administration that emphasized that compulsory attendance as permissible human resource policy:

General Counsel Abruzzo explains that the Board has long-recognized that the Act protects employees’ right to listen to—or refrain from listening to—employer speech concerning their rights to act collectively to improve their workplace. Forcing employees to attend captive audience meetings under threat of discipline discourages employees from exercising their right to refrain from listening to this speech and is therefore inconsistent with the NLRA. 

This license to coerce is an anomaly in labor law, inconsistent with the Act’s protection of employees’ free choice. It is based on a fundamental misunderstanding of employers’ speech rights,” said General Counsel Jennifer Abruzzo. “I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our Congressional mandate. Because of this, I plan to urge the Board to reconsider such precedent and find mandatory meetings of this sort unlawful.”

The General Counsel states that she will urge the Board to correct that anomaly and propose they adopt sensible assurances that an employer must convey to employees in order to make clear that their attendance at these meetings is truly voluntary.  Such an approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of their protected labor rights without unduly infringing on the rights of employees to refrain, or not, from listening to such expressions.  See GC 23-02 Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

Conclusions and Observations

A primary to-do item arising out of this shift in policy is that employers should review their employee handbooks, policies, and work rules. I note that while reviewing such items is a regular part of update practice, the impact of policy reviews at the NLRB stage can adversely impact the lawfulness of such policies as well as playing a near evidentiary role in individual cases.

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