Legal E-Bulletin - December 2022

National Labor Relations Board (NLRB) General Counsel Seeks to Limit Employers’ Use of Artificial Intelligence in the Workplace

Diego Demaya, J.D., Southwest ADA Center

On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”  Given such a broad position on AI monitoring of employees, the General Counsel is likely applying a broad approach to alert employers that overly aggressive or inflexible use of electronic monitoring and automated or algorithmic management practices may violate the Act.

Under the General Counsel’s proposed framework, an employer can avoid a violation of the Act if it can demonstrate that its business needs require the electronic monitoring and management practices and the practices “outweigh” employees’ Section 7 rights.  Not only must the employer be able to make this showing, it must also demonstrate that it provided the employees advance notice of the technology used, the reason for its use, and how it uses the information obtained.  An employer is relieved of this obligation, according to the General Counsel, only if it can show “special circumstances” justifying “covert use” of the technology; e.g., trackers embedded in portable smart devices or work vehicles.

In GC 23-02, the General Counsel signaled to NLRB Regions that they should scrutinize a broad range of “automated management” and “algorithmic management” technologies, defined as “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making” that can include entirely automated disciplinary and termination actions. Technologies subject to this scrutiny include those used during working time, such as wearable devices, security cameras, and radio-frequency identification badges that record workers’ conversations and track the movements of employees, GPS tracking devices and cameras that keep track of the productivity and location of employees who are out on the road, and computer software that takes screenshots, webcam photos, or audio recordings.  Also subject to scrutiny are technologies employers may use to track employees while they are off duty, such as employer-issued phones and wearable devices, and applications installed on employees’ personal devices.  Finally, the General Counsel noted that an employer that uses such technologies to hire employees, such as online cognitive assessments and reviews of social media, “pry into job applicants’ private lives.” Technologies such as resume readers and other automated selection tools used during hiring and promotion may also be subject to GC 23-02. Thus, these pre-hire practices may also violate the NLRA which applies to any employer regardless whether there is a union or not.

Notably, GC 23-02 follows the wave of recent federal guidance from the White House, the Equal Employment Opportunity Commission, and local laws that attempt to define, regulate, and monitor the increasing use of artificial intelligence in decision-making capacities.

Recommended Practice

  • GC 23-02 should be read in conjunction with NLRA Section 7 protected employee activities as a standard to follow when AI technology is used by an employer to collect and analyze data gathered by required wearable and mobile devices–including, but not limited to, bracelets, mobile smart phones, laptops, smart watches,  and tracking devices installed in motor vehicles.
  • A summary and overview of NLRA protected employee activity can be readily accessed on the NLRB’s web site in a publication called Interfering with employee rights (Section 7 & 8(a)(1)).
  • Also recall that use of AI wearable and mobile technologies may interfere with other rights such as the Americans with Disabilities Act (ADA) which prohibits employer discrimination on the basis of employee disabilities – such as penalizing extra or prolonged bathroom and/or breaks needed by an employee due to a disability (usually granted to employees as a reasonable accommodation). For instance, a worker who has diabetes may require additional breaks in a given day to check blood sugar levels or to administer medication for another medical condition. Any AI or Machine Learning (ML) employee monitoring technology should be “modifiable” or utilized “flexibly” to allow for any employee-identified or requested disability-based accommodations.
  • Similarly, any AI or ML used to monitor employees should be applied flexibly to avoid interference with employee NLRA protected activity; e.g., using AI monitoring tech to listen in, or video tape, employees voicing complaints as a group. Section 7, thus, prohibits threatening employees with adverse consequences if they engage in protected, concerted activity. (Activity is "concerted" if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is "protected" if it concerns employees' interests as employees. An employee engaged in otherwise protected, concerted activity may lose the Act's protection through misconduct.)

The Southwest ADA Center is a program of ILRU (Independent Living Research Utilization), at TIRR Memorial Hermann in Houston, Texas. The Center is funded by grants (90DP0092 and 90DPAD0010) from the National Institute on Disability, Independent Living, and Rehabilitation Research. NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this e-bulletin do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.

For further technical assistance on the Americans with Disabilities Act (ADA) or other disability-related antidiscrimination laws contact:

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