Many of you will recognize that old jingle from Alan Funt’s television show titled Candid Camera.
Funt entertained America with hidden video cameras that caught pranks and jokes showing people in their most embarrassing and hilarious moments. Counting occasional syndicated versions, the show ran off and on from 1948 to 2004. I guess it is my earliest memory of a reality TV show.
If Funt were alive now and managing your company, he might be deploying his cameras and surveillance tools just to see what the heck employees are doing during their workdays.
As we facilitate MARC training around the country, managers increasingly ask us what they can do, in a post-pandemic and often hybrid or home work environment, to make sure that remote employees are really working when they’re supposed to be. When field workers take their trucks home and rarely see the line dock or plant, how can we monitor productivity? When the workplace is the employee’s home, how do we know if he’s working or mowing the lawn?
And new tools to help managers know the answers to these questions are being developed and deployed.
Wearable devices can record employee conversations and track their movements. Security cameras capture their best and worst moments. GPS tracking in company fleet vehicles can tell if the employee is on route – or on route to mischief somewhere. Software, discretely loaded into laptops and desktop computers, can take random screenshots, webcam photos or record conversations. And artificial intelligence – who knows what AI might enable?
There’s a chance that these tools might record employees discussing working conditions, planning a union campaign, strategizing for contract negotiations or pondering a grievance filing. That has the NLRB worried.
In October 2022, NLRB General Counsel Jennifer Abruzzo issued Memorandum GC 23-02, Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights. GC Abruzzo wrote, “An issue of particular concern to me is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.”
She points out in her memorandum that employees have NLRA-protected rights to discuss their working conditions and union activities in the workplace – certainly before and after work and during breaks, but also to an extent during work if the employer allows other types of non-work discussions between employees. If employer surveillance or monitoring tools can capture and preserve these legally protected conversations, and if that creates a climate where employees suffer adverse consequences like discipline or reassignment because of their protected actions, it violates the NLRA. Even if the mere existence of the tools may chill employee speech and activity because of employee concern that there might be adverse consequences, there may be NLRA violations.
Decisions on selection and implementation of tools for worker monitoring must carefully factor and weigh the effects that they might have on employees and employee rights under the law – especially in a union-represented workplace where the union may have a legal right to advance notice and even an opportunity to bargain the effects that these tools might have on protected employee activities.
The NLRB will consider a company’s legitimate business needs for monitoring and surveillance tools. But if the Board determines that employee rights may be adversely affected by these tools, the company will have to prove that its need for the tools outweighs risks to employee rights and that the tools are narrowly focused to minimize any legal risks – and that may be a tough sell.
There are many ways we can engage and lead our employees in our ever-changing workplaces, regardless of where they are situated at the time. Our MARC training course helps managers identify some of the best leadership practices available.
For over 40 years, MARC training has provided management teams with the training and tools to identify mandatory subjects of bargaining, understand employee rights, and make decisions that are compliant and well thought-out. MARC concepts emphasize using consensus decision-making, knowing when and where to ask for help, and using a professional pause to avoid biased or faulty decision-making.
Ben Franklin taught us that an ounce of prevention is worth a pound of cure. Sign your up team with MARC and prevent costly mistakes . You’ll be glad you did.
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