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NLRB General Counsel Enters the Discussion on AI in the Workplace

January 4, 2023

We previously posted about employer use of Artificial Intelligence, AI, and the emerging legal issues associated with such tools.  Recently, the National Labor Relations Board General Counsel issued GC Memorandum 23-02, which outlined her view that the use of electronic monitoring and artificial intelligence can run afoul of the National Labor Relations Act.  The memo states that surveillance and other algorithmic-management tools may 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.”

The Board currently uses a balancing test to weigh an employer’s justification for surveillance against the potential interference with employees’ right to engage in concerted activity in the workplace.  The Board has held that without proper justification, certain surveillance of employees engaged in protected activities violates the Act.  Also, under current case law, the use of existing security or other technologies in response to union organizing activity can violate the Act.

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