December 2022 | Volume 14, Issue 5

Read the full article on CBS News.

According to the article, the U.S. top worker lawyer plans to crack down on businesses' ability to spy on their workers. 

In a recent memo, the general counsel for the National Labor Relations Board urged the board to disallow employers from using productivity software in cases where it can interfere with workers' ability to organize.

"Close, constant surveillance and management through electronic means threaten employees' basic ability to exercise their rights," Jennifer Abruzzo wrote in the memo.

The use of workplace monitoring devices exploded during the pandemic. About 60 percent of large employers use monitoring tools today, double the pre-pandemic level. And white-collar workers' shift to remote work means millions more employees today are subject to so-called bossware: Software that screenshots the websites they visit, records their faces and voices, logs their keystrokes, tracks their locations and monitors their calls and text messages.

The use of work surveillance tech is "growing by the minute," said Mark Gaston Pearce, executive director of the Workers' Rights Institute at Georgetown Law School and chair of the NLRB under former president Obama.

"Employers are embracing technology because technology helps them run a more efficient business … What comes with that is monitoring a lot of things that employers have no business doing," he said. 

It is already illegal for employers to surveil workers' "concerted protected activity," a term that encompasses communications and meetings about work conditions, "having meetings to decide whether or not they want to unionize or having meetings just to discuss working conditions or even an individual supervisor," Pearce said. 

Abruzzo's memo brings existing law in line with modern technology, Pearce added.

In recent years, businesses have jumped on surveillance tools to crack down on the surge in worker organizing. Since 2016, employer surveillance of workers' union campaigns has more than doubled, according to early research from the Cornell School of Industrial and Labor Relations. That includes monitoring workers' social media, checking key cards or ID badges and using cameras to spy on workers. 

"Surveillance stifles worker organizing," Athena, a coalition of labor and community groups opposing Amazon, said in a statement responding to Abruzzo's memo. They cited three Amazon workers who were fired for unionizing, one of whom had low productivity metrics in Amazon's tool. 

Amazon-owned Whole Foods has used heat maps to locate stores considered likely to unionize, while Google automatically alerts managers to any meeting with more than 100 employees.

Rep. Robert Scott, a Democrat from Virginia and the chairman of the House Education and Labor committee, recently asked the Biden administration to investigate employers' use of monitoring software for at-home workers.

The creep of workplace technology into everyday life could make workers too fearful to speak with each other, let alone organize, Abruzzo said in the memo.

As the top lawyer for the National Labor Relations Board, Abruzzo lays out priorities for the board's regional offices, essentially calling out bad behavior that should be prosecuted. The memo is intended to provide guidance for the board once a case is brought — by a worker, employer, union, or NLRB regional office.

Discussion Questions

  1. Define “bossware.” In your reasoned opinion, should employers be allowed to use bossware to monitor employees? Why or why not?
    Bossware is software that is installed on employee computers that allows managers to track employees’ working time, mouseclicks, screen windows and other data. Although student opinion may vary regarding whether employers should be allowed to use bossware to monitor employees, in your author’s opinion, given the fact that bossware is used to monitor employee productivity and effectiveness, it is "fair game” in the workplace environment, regardless of whether the monitoring is administered in a traditional workplace environment or via remote work. With that being said, managers should be mindful to use bossware as only one component of evaluating overall employee performance, and employers should disclose to employees that they are in fact using the software to evaluate employee productivity and effectiveness. Additionally, by federal law, employers must honor their employees’ rights regarding unionization efforts, regardless of whether that discussion takes place “face-to-face” or online (See the responses to Article 2, Discussion Question Numbers 2 and 3 below).
  2. Describe the National Labor Relations Board.
    According to the National Labor Relations Board (NLRB) is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.
  3. Discuss the general counsel for the National Labor Relations Board’s initiative to convince the board to disallow employers from using productivity software in cases where it can interfere with workers' ability to organize. Do you support or oppose this initiative? Why or why not?
    As mentioned in response to Article 2, Discussion Question Number 1 above, by federal law, employers must honor their employees’ rights regarding unionization efforts, regardless of whether that discussion takes place “face-to-face” or online. The National Labor Relations Act protects workers’ ability to engage in unionization efforts. Learn more about the National Labor Relations Act and its protection of worker unionization efforts.