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What happened?

The U.S. Court of Appeals for the D.C. Circuit recently shot down the National Labor Relations Board’s (NLRB) attempt to prohibit employers from monitoring employees using video surveillance.

What are the details?

Background

• In October 2022, the NLRB expressed concerns over employers’ growing use of monitoring technologies like key loggers and cameras to enforce quotas and directives. The NLRB stated that such use of technology could breach the National Labor Relations Act (NLRA), regardless of whether it was specifically used to monitor union activities (See NLRB Memo).

The case

• The case involved two unfair labor practices.

• The first charge was against the employer for violating the NLRA. A manager had texted a truck driver, instructing him not to cover the installed cameras in the truck.

• The second charge accused the employer of violating the NLRA by issuing a written warning to an employee for making inappropriate comments about a coworker’s sexual orientation.

• The Administrative Law Judge initially ruled in favor of Stern Produce on both charges in the unfair labor practices case.

• The NLRB, however, overturned the Administrative Law Judge’s decision upon review.

• The employer appealed the NLRB’s decision to the D.C. Circuit Court.

• The court issued a strongly worded opinion, reversing the NLRB’s decision and ruling in favor of the employer.

The Court

• The court stated that the employer had informed truck drivers about camera monitoring and privacy expectations in company vehicles and had instructed them not to disable the cameras. The employer also upheld a policy against discrimination based on sexual orientation. The D.C. Circuit ruled that the employer’s enforcement of these policies did not violate the NLRA, as there was no proof of intent to disrupt employees’ union activities.

• For a more detailed breakdown of the case.

Business Considerations

• The opinion of Stern Produce Company Inc v. NLRB is good news for employers who use technology to monitor productivity. It also reinforces an employer’s right to protect employees from discrimination based on their sexual orientation.
• Employers should communicate any monitoring policies to employees and inform them about the use of technologies like cameras and the expectations regarding privacy.
• Employers should maintain and enforce policies that prohibit discrimination, including based on sexual orientation.
• Employers should ensure company policies do not violate the NLRA. There should be no intent to interfere with employees’ rights to engage in union activities.
• Employers should seek legal advice when implementing or enforcing policies that could potentially infringe on employees’ rights under the NLRA.

Source References

• NLRB’S Recent Move to Reduce Employers’ Ability to Monitor Employee Productivity Struck Down (Barnes & Thornburg LLP)
• NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices (VensureHR)
• DC Circuit Gives NLRB a “Stern” Warning (US) (Squire Patton Boggs)
• D.C. Circuit Rejects NLRB Surveillance Decision as “Nonsense” (Littler Mendelson P.C.)
• The NLRB Gets a Stern Rebuke (. S. Chamber of Commerce)

Resources

• Stern Produce Company Inc. v. NLRB

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