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. Long-standing NLRB law makes it illegal for an employer to create an “impression of surveillance” that discourages employees from discussing or engaging in union activities. 

The majority of NLRB decisions on this issue involve employers specifically attempting to surveil union activity. Thankfully for employers, the NLRB's recent attempt to broaden the reach of this precedent was resoundingly unsuccessful. 

The recent issue dates back to October 2022, when the NLRB's general counsel issued a memo stating she was concerned by employers increasingly using monitoring systems, such as key loggers and cameras, to ensure employees meet quotas and individualized directives throughout the day. She noted she planned to “urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.” In response, the NLRB adopted the position that an employer's use of technology to monitor productivity can violate the National Labor Relations Act (NLRA), whether or not the technology was being used specifically to monitor union activity. 

The NLRB recently applied the general counsel's directive in Stern Produce Company Inc v. NLRB. The case involved two unfair labor practices. The first charge claimed that the employer violated the NLRA when a manager texted a truck driver and told the driver he was not allowed to cover cameras installed in the truck. The second charge alleged that an employer violated the NLRA when it gave an employee a written warning for making inappropriate comments pertaining to a coworker's sexual orientation. 

The Administrative Law Judge presiding over the unfair labor practices matters found in favor of Stern Produce on both charges. However, the NLRB overturned the Administrative Law Judge on review. The employer appealed the board's decision to the D.C. Circuit Court, and the court issued a strongly worded opinion reversing the board's decision in favor of the employer. 

The court explained that the employer notified truck drivers they would be monitored on camera, informed truck drivers they should not expect privacy while driving company vehicles, and instructed drivers not to turn off their cameras. The employer also maintained an equal employment opportunity policy that prohibited discrimination against employees and co-workers based upon sexual orientation. Accordingly, the D.C. Circuit determined the employer could enforce both company policies without violating the NLRA, as there was no evidence the policies were being enforced with the intent to interfere with the employees' right to engage in union activity. 

The opinion in Stern Produce Company Inc v. NLRB is good news for employers who use cameras and other technology to monitor productivity. It also reinforces an employer's right to protect employees from discrimination based upon their sexual orientation. Although the NLRB does not consider the D.C. Circuit's opinion binding precedent, the opinion may affect how the board views these issues in the future.