The federal government wants to stop your boss from spying on you

With more of their employees working from home, many companies are taking steps to keep tabs on them. But the federal government says some of this surveillance has gone too far.

In a memo released Monday, the top lawyer for the National Labor Relations Board, a federal government agency dedicated to protecting worker rights, said she will work to protect US employees from “intrusive or abusive electronic monitoring and automated management practices.” 

This “omnipresent surveillance” is happening almost everywhere, wrote the NLRB’s General Counsel Jennifer Abruzzo, as employers “closely monitor and manage employees.”

In warehouses, some employers “record workers’ conversations and track their movements,” she said. On the road, some drivers are subjected to “GPS tracking devices and cameras.” In the office, some companies are monitoring employees with “keyloggers” that track what a worker types into their computer and software that “takes screenshots, webcam photos, or audio recordings” over the course of the work day. And even at home, many companies continue to monitor workers with “employer-issued phones or wearable devices.”

But Abruzzo says each of these practices deserves scrutiny. 

“An employer’s right to oversee and manage its operations with new technologies is not unlimited,” she said.

As remote work has emerged, companies ranging from Amazon to Microsoft to JP Morgan have expressed concerns that workers are slacking off when they’re not in the office. In a September Microsoft survey of 20,000 people across 11 countries, 85% of managers said it was difficult to tell whether remote workers were being productive. Some experts have called this “productivity paranoia” a sentiment that’s led some companies to expand the use of various surveillance technologies. But worker advocates like Abruzzo are concerned that this practice has gone too far. 

Along with infringing upon workers’ privacy, the General Counsel said this surveillance could also be used to disrupt union organizing — something Amazon has been accused of in the past — and collect vast amounts of data on workers.

“Some employers use that 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,” she said. 

These are among the reasons Abruzzo’s memo called on the NLRB to review companies’ surveillance technologies and assess whether they restrict workers’ rights. In the meantime, she recommended that employers be required to disclose the technologies they are using to their employees, as well as the reasons they are doing so. 

While the emergence of remote work has brought this surveillance into the spotlight in recent years, the legal landscape remains murky. 

In October, a Florida-based company was forced to pay $73,000 to a Dutch worker who was fired for refusing to turn on his webcam during a virtual training program.

But while the Dutch court sided with the worker, legal experts told Insider a US worker would have likely faced a different outcome. That’s because most Americans work in states with at-will employment, meaning either they or their employer can end their employment agreement at any time and for almost any reason.

Though there are some reasons for which firing an employee can be illegal, “the scope for what’s illegal is narrow,” Cody Yorke, an associate at employment law firm Outten & Golden’s New York office, previously told Insider. Therefore, it’s “probably not” illegal, Yorke said, to make a US employee leave their camera on all day, adding that federal laws around employee privacy are “kind of outdated.”

The Monday memo suggests that the National Labor Relations Board is working to get up to speed. Going forward, the agency is expected to utilize laws already in place to protect workers, as well as push for more comprehensive legislation if necessary. 

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