News & Commentary

November 6, 2022

Swap Agrawal

Swap Agrawal is a student at Harvard Law School.

In this weekend’s news and commentary, IAM members voted to accept a revised contract agreement with railroad companies and NLRB General Counsel Abruzzo issued a new memo on employers’ unlawful use of electronic surveillance and automated management technologies.  

On November 5, the International Association of Machinists and Aerospace Workers District 19 announced that its roughly 4,900 locomotive machinists, track-equipment mechanics, and facility-maintenance personnel narrowly approved a revised contract agreement that union had reached with freight railroads. IAM members had rejected the original contract on September 14, the day before the White House announced a deal between rail companies and three other unions to prevent a national strike. This time, 59% of members voted and 52% of them accepted the deal. IAM acknowledged that “the agreement wasn’t accepted overwhelmingly” and said it “will continue to amplify the deficiencies in the carriers’ sick leave and attendance policies.” Two unions have rejected the tentative agreement struck in mid-September primarily due to discontent over sick leave, creating the potential for a strike to begin as soon as late this month. The Brotherhood of Railroad Signalmen, which represents over 6,000 workers who install and maintain signal systems, voted to reject the tentative agreement in late October. The Brotherhood of Maintenance of Way Employees, which represents roughly 23,900 workers who build and maintain tracks and bridges, also voted against the deal on October 10. Last week, more than 300 industry groups including the National Retail Federation and National Association of Manufacturers urged President Biden to take action to prevent a rail strike.

On October 31, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a new memo announcing her intention to protect employees from unlawful electronic surveillance and automated management practices. The memo notes that employers are increasingly recording workers’ conversations, tracking worker movements using phones or tracking devices, and monitoring employees’ computers with keyloggers, screenshots, and webcam photos. GC Abruzzo expressed particular concern about technologies that can be used to interfere with employees’ Section 7 rights to form a union or engage in concerted activities. The memo emphasizes that employers violate Section 8(a)(1) when they use novel technology to discover or monitor Section 7 activity inside or outside of the workplace. Employers also violate Section 8(a)(1) if they discipline employees who concertedly protest workplace surveillance or algorithmic management. Moreover, employers violate Section 8(a)(3) if they rely on artificial intelligence to screen applicants or discipline employees who are union supporters. Finally, the memo states that at unionized workplaces, employers violate Section 8(a)(5) if they fail to provide information about and bargain over the implementation of tracking technologies.

GC Abruzzo also urged the Board to adopt a new framework to protect employees from electronic monitoring and management that interfere with Section 7 activity. Specifically, she urges the Board to find that an employer has presumptively violated Section 8(a)(1) where “the 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.” In support of this framework, the memo discusses the importance of employees’ right to communicate with other employees regarding self-organization at the jobsite and the confidentiality interests of employees engaging in Section 7 activity. GC Abruzzo acknowledges that employee rights must be balanced against the legitimate business interests of the employer, but she notes that employer practices must be narrowly tailored to those business needs. Other branches of government are also reacting to increased use of workplace technology, as the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice recently cautioned employers about the use of AI, machine learning and other algorithmic decision-making tools in employment contexts.

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