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Tag: legal

10 FAQs on the Legality of Monitoring Employees

Posted on by Marian Domingo
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Employee monitoring is used by many businesses to track the performance and computer usage of their employees. While this is an essential process, employers have a responsibility to ensure that their monitoring methods are non-invasive.

In this article, we will explain how and why employee rights should be protected, by answering the top 10 FAQs on the legalities of the monitoring process.

#1 What is Employee Monitoring?

Employee monitoring is the process of workplace surveillance conducted by employers to gather data on the activities of their employees in the workplace.

There are several reasons why employers may conduct this process, including to improve performance, safeguard staff, and protect their data or resources.

#2 Is Employee Monitoring Legal?

Employee monitoring is legal under most state and federal laws. 

The Electronic Communications Privacy Act 1986 (ECPA) states that employers can monitor the written and verbal communications of their employees, as long as they have a valid reason for doing so.

#3 When is Employee Monitoring Considered to be Invasive?

Employee monitoring can be considered invasive if employees are not made aware that they are being monitored. This process also becomes invasive when employers do not have a valid business reason for the surveillance, especially when working from home has become so commonplace.

Invasive employee monitoring may therefore include:

  • Monitoring employees outside of work hours without consent
  • Listening to or recording private phone calls and messages without consent
  • Installing monitoring software on an employee’s device without consent

#4 Which Laws Protect Employee Privacy in the Workplace?

According to an ExpressVPN survey, 59% of employees are anxious about the prospect of being monitored at work. 

However, there are laws in place ensuring that employees get the privacy that they are entitled to, whilst also allowing the employer to monitor the activities of the business.

The main employee privacy law is the Electronic Communications Privacy Act 1986 (ECPA), which is the only federal act governing workplace electronic communication monitoring.

This law sets the minimum limitations for employee monitoring and has been adapted by several states to impose greater restrictions on employers.

#5 Can Employers Watch Employees Using Video Monitoring Systems?

According to the ECPA, employers are legally allowed to monitor their employees using video surveillance systems if they have a legitimate reason for doing so.

However, some states across the US have chosen to increase restrictions and prohibit the use of video monitoring to maintain employee privacy.

For example, West Virginia, New York, and California have banned video monitoring in areas such as restrooms.

#6 Is It Legal for Employers to Monitor Company Computers?

Yes, employers can access any activity performed on a work computer, which is considered lawful if they make employees aware of this before monitoring their devices.

This includes monitoring screen contents, keystrokes typed per hour, and emails sent or received on the company’s system.

#7 Are Employers Legally Able to Monitor the Personal Devices of Employees?

For productivity and performance levels to be as high as possible, employees need to have a good work-life balance.

This involves employers allowing their employees to live their personal life outside of the workplace privately, without fear that they will be monitored.

Legally, employers cannot ask employees to download monitoring software on their personal devices without written consent. However, many companies do gain the consent of employees if they have a bring your own device (BYOD) to work policy in place.

#8 Can an Employer Monitor The Social Media of Their Employees?

Employers have the legal right to monitor the social media accounts of both current and prospective employees.

They can also take disciplinary action if an employee’s social media posts violate company policies.

#9 Can Employers Track Employees Using GPS?

If employers have a valid business reason for doing so and have gained consent from the employee, then they can use a GPS vehicle tracker to monitor employees.

GPS is used especially by companies employing people to work from home, to ensure that they are in the right location to work.

#10 Do Employers Have to Inform Employees That They Are Being Monitored?

In some states, employers are not required to inform employees of their monitoring procedures.

However, being open with employees about monitoring can be beneficial to employer-employee relations and may create a better company culture. A Dtex System survey found that 77% of American employees would feel less concerned about employee monitoring as long as they were transparent about it. 

For example, implementing healthy workplace initiatives and tracking the health metrics of employees can help lower the company’s health insurance costs. The data of employees who volunteer to join the program and their feedback can be used to plan the next steps for a healthier workforce.

Conclusion

Legally, employers are therefore able to monitor their employees. However, their employee monitoring procedures must be non-invasive to maintain good relations and ensure that employees feel respected within the workplace.

About the Author: Marian Domingo is blog contributor for Workplace Fairness.

This blog was contributed to Workplace Fairness and is published with permission.


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How Unions Are Fighting to Protect Abortion Rights

Posted on by C.M. Lewis
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On May 2, Politico issued a bombshell report based upon a leaked draft of a majority opinion by the Supreme Court fully overturning Planned Parenthood v. Casey and Roe v. Wade—a devastating repeal of nearly 50 years of federal protection for abortion rights. The decision is expected this month, but the unprecedented revelation triggered a political earthquake and widespread alarm.

Organized labor began to issue a slow wave of statements opposing the draft opinion and pledging support for abortion and reproductive rights. AFL-CIO President Liz Shuler, the first woman to head the national labor federation, issued a statement on May 3 condemning the draft decision — a stark reversal of the AFL-CIO’s historic reticence on abortion rights. Even the International Union of Painters and Allied Trades, a member of the typically more conservative Building Trade Department, issued a statement defending “women’s fundamental right to healthcare and bodily autonomy.”

The response reflects a significant change in organized labor. Some unions, seeing the threat of Dobbs v. Jackson Women’s Health Organization, even intervened in the case early: AFSCME and SEIU signed amicus briefs supporting reproductive rights. But responses since the Politico report reveal some trepidation in the movement, with most unions making general statements in support of reproductive rights while a small number — such as the NewsGuild-CWA and Vox Media Union — have pledged more concrete action to collectively bargain protections for abortion.

According to Dr. Rebecca Givan, a professor of labor and industrial relations at Rutgers University, there’s a lot unions can do to protect abortion access. “I think that unions will try to protect access of their members through making sure contracts and health insurance coverage combined are sufficient to support anyone who needs access to abortion care.”

Unions like the NewsGuild-CWA are intent on doing exactly that. Jon Schleuss, the President of the union, described being stunned by the leak, but quickly realizing that action needed to be taken. “It was really important to immediately bring in members and other leaders in the Guild to start discussing how we collectively felt,” said Schleuss. “That way we could channel our anger and outrage into productive collective action.”

For the NewsGuild-CWA, strengthening existing collective bargaining agreements — like Givan suggests — is a natural starting point for discussing how unions can protect abortion access. “We have a lot of members in states that have a lot of these trigger laws,” Schleuss explained.

“There’s three different newsrooms in Texas, several in Missouri, and we’ve got national members who are spread across the country. So how do we actually affirm abortion access inside our contracts?”

According to Jaya Saxena, a senior writer at Eater and activist with Vox Media Union, workers are facing similar challenges protecting a dispersed membership spread across states with trigger laws. “We’re an extremely remote company,” said Saxena. “Vox Media has headquarters in New York and D.C., but there are a lot of people who work from home and work in different states.”

Vox workers had anticipated an attack on abortion rights, and had already made proposals strengthening abortion access for their members. In addition to ensuring that health insurance covers the cost of abortions, they’re looking at the broader question of access, such as assistance and financial support to employees who have to travel from states where abortion care isn’t available. With the leaked ruling, workers are looking ahead at future attacks, like on same sex marriage. But, Saxena says, “It’s so hard to anticipate what might happen in the future and try to write a contract or proposed wording that would account for these awful hypotheticals.”

Securing a strong contract may prove to be a fight. The Vox Media Union has issued notice of its intent to strike if a new deal isn’t reached before June 13, when the current contract expires, though the strike does not appear to hinge on the reproductive rights measures. An impressive 95% of workers have signed strike pledges.

But fighting to strengthen collective bargaining agreements is only a starting point, according to Givan. She’s concerned about whether organized labor will organize to fight back, and whether labor will consider unorthodox approaches — like using union release time to do the abortion access work of providing transportation and childcare, similar to how many unions use release time for elections.

A key battleground, however, may prove far bigger than individual collective bargaining agreements: union healthcare trusts.

Trusts, sometimes called “Taft-Hartley Trusts,” are nonprofit entities administering the funds for health insurance and healthcare plans — usually covering multiple employers with employees represented by the same union — with trustees split between participating unions and management.

According to Form 5500s, a standard annual report on benefit performance and operations filed with the Department of Labor, just 10 of the largest union healthcare trusts cover approximately 581,000 plan participants, with nearly $25 billion dollars in assets. Millions of Americans are covered by union healthcare trusts, some of which — like the 1199SEIU National Benefit Fund, which covers approximately 154,000 plan participants — already guarantee abortion coverage.

However, not all do: The United Food and Commercial Workers and Food Employers Benefit Fund explicitly excludes medications that induce abortion from prescription drug coverage, and the Teamsters Health and Welfare Fund of Philadelphia and Vicinity excludes elective abortion.

How far unions go to defend abortion access, either at the bargaining table or elsewhere, remains to be seen. Givan thinks that the muted response from some segments of organized labor demonstrates profound anxiety about the November midterm elections.

This is a blog that originally appeared in full at In These Times on June 8, 2022. Reprinted with permission.

About the author: C.M. Lewis is a contributor for In These Times, an editor of Strikewave, and a union activist in Pennsylvania.

View Workplace Fairness’ page on unions if you are interested in learning more about them.


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The Lie that Helped Kill the Labor Movement

Posted on by Ian Ward
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Ian Ward

In late March of 1969, Dominick Manoli, an associate general counsel at the National Labor Relations Board, appeared before the Supreme Court to deliver oral arguments in National Labor Relations Board v. Gissel Packing Company, Inc. At issue in the case was the NLRB’s policy regarding labor unions formed by “card check,” a process that allowed workers to form a union by collecting signed authorization cards from a majority of their bargaining unit rather than by participating in a formal, NLRB-supervised election. The NLRB’s policy toward these unions, known as the “Joy Silk doctrine,” was clear: In the absence of a “good faith doubt” about the union’s majority status, employers were obligated to recognize it as the workers’ exclusive bargaining agent. If the employer refused without a good faith doubt, the NLRB would issue a bargaining order to compel them to come to the table.

But when Associate Justice Byron White asked Manoli to explain how the Joy Silk doctrine would apply to a situation in which an employer, without a good faith doubt about the authenticity of the union’s majority, declined to recognize a union on the grounds that the employer preferred a formal election, Manoli’s response came as something of a surprise: He stated the exact opposite of the board’s position.
“The [NLRB’s] general counsel will not issue a complaint … in that kind of situation where the employer says to the union, â€I don’t wish to rely upon cards,” Manoli told White.

“â€I don’t care how many cards you’ve got. I just don’t like it,’” said White, ventriloquizing the position of an employer.

“That’s right,” Manoli replied.

No one knows for sure why Manoli misstated the board’s position — but regardless of his true motives, his arguments stuck. In its decision in Gissel, the Supreme Court concluded that the NLRB had abandoned Joy Silk altogether and put forward a new standard according to which the board would in general only issue bargaining orders if it could prove that an employer had committed “outrageous” or “pervasive” unfair labor practices that made the conduct of a fair election unlikely or impossible. Two years later, in 1971, Richard Nixon’s NLRB formally amended its policy to align with the court’s decision in Gissel, indicating in a written decision that it would no longer inquire into employers’ good faith — or lack thereof — when deciding whether to issue a bargaining order to an employer who declined to recognize a card check.

Half a century later, this episode has taken on new relevance as the labor movement and its allies in the Biden administration seek to correct Manoli’s mistake. In April, Jennifer Abruzzo, President Joe Biden’s choice to serve as the NLRB’s general counsel, filed a brief in an ongoing dispute before the NLRB recommending that the five-member board readopt Joy Silk as its governing policy. (The brief makes only passing mention of Manoli’s role in the end of Joy Silk, noting in a footnote that “the Associate General Counsel misrepresented controlling Board law regarding the Joy Silk doctrine” during oral arguments in Gissel.) The board, composed of three Democratic-appointed members and two Republican-appointed members, is expected to issue a decision on Abruzzo’s recommendation in the coming months.

For many labor advocates, reinstating Joy Silk would be the first step toward addressing the lasting consequences of Manoli’s reversal. Today, it remains virtually impossible for unions to receive recognition via card check, forcing workers to rely instead on the more protracted and legally-complex process of a board-supervised election. According to some labor experts, the election process in the post-Joy Silk era remains weighted heavily in favor of employers, who are able to use an array of unfair practices to disperse support for a union without triggering a bargaining order under the Gissel standard.

“It’s striking to look at the surge in unfair labor practices that basically started precisely after 1969,” says Brian Petruska, general counsel at LIUNA Mid-Atlantic Regional Organizing Fund and the author of a 2017 article about the Joy Silk doctrine for the Santa Clara Law Review that Abruzzo cites in her brief. “What [the data] shows is that the situation has continued to get worse.”

Against this background, Manoli’s performance before the Supreme Court holds more than merely antiquarian interest. In a policy area that’s often assumed to be governed by impersonal economic laws and abstract market forces, the end of Joy Silk is the rare instance where a major change in labor law can be traced more or less directly to the actions of a single individual. If Manoli’s decision to abandon Joy Silk in March 1969 contributed to the presently anemic state of the labor movement, then what possibilities could its readoption hold for the movement’s future?

This is part of a blog that originally appeared in full at Politico on June 7, 2022. Reprinted with permission.

About the author: Ian Ward is a contributing editor for Politico Magazine.


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The Amazon Labor Union Victory Shows That Jurisdiction Is Dead

Posted on by Hamilton Nolan
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Hamilton Nolan

When news spread April 1 that the independent Amazon Labor Union (ALU) had won its union election at an Amazon warehouse on Staten Island in New York, the initial response from anyone who supports the labor movement was exultation at this unprecedented — and unexpected — victory for the working class.
he secondary response was a collective “In your face!” to mega-billionaire Amazon founder Jeff Bezos, who was shown that all the money in the world can’t crush the will for a union.

Now, we can all move on to what should be the next response: Forcing the union establishment to take a long, hard look at what it needs to change.

The ALU — a project of current and former Amazon workers as well as committed volunteer organizers — succeeded in organizing Amazon before any big, well-funded union could. That fact has produced a million insta-analyses: “They were in New York City, not Alabama — so they had the easiest target!” “The ALU was led by cool younger people — old union bureaucrats must be purged!” Etc.

Rather than indulge in that particular argument, I propose an adjacent conclusion that I think will hold true no matter where anyone lands on the specific tactical questions about the ALU victory. This is the lesson the union world should take from the ALU’s accomplishment: Jurisdiction is dead. By this I mean that all of the time unions spend arguing with one another over who has the right to organize which workers, in which industry, at which company is one gargantuan waste of time. Stop it. It’s useless. It is, in essence, a bunch of drivers arguing over a single parking space in one corner of a vast, empty parking lot. While an asteroid is approaching. It is not something that should be on the list of top 100 priorities for labor, given the current situation.

Who cares about jurisdiction in the first place? Well, many major unions consider this parochial concern to be the most important reason for the AFL-CIO to exist — to serve as a traffic cop, arbitrating petty arguments between unions that want to organize the same place. Inherent in this perspective is the belief that other things the central body of the labor movement could be doing — like, for example, building multi-union coalitions capable of organizing powerful employers like Amazon — are less important than this traffic cop role.

What has this approach gotten us?

It has gotten us a nation in which barely one in ten workers (including barely 6 percent of private sector workers) are union members, while economic inequality has been rising for decades. The idea that unions should have the right to lay claim to particular industries where 90 percent of workers are not union members is farcical. A perfect illustration of this absurdity is the fact that, in March, new Teamsters president Sean O’Brien told Bloomberg he “wants the Teamsters to be the only union that organizes workers at Amazon’s fulfillment centers and sorting hubs.” Less than two weeks later, the independent ALU had actually unionized an Amazon fulfillment center, which is one more Amazon fulfillment center than the Teamsters have unionized.

Unions serve workers. Not the opposite. What serves workers best is having a union now, not the abstract concept of a single union that owns their industry and may get around to organizing them years from now. Until union density in America reaches, say, 50 percent or more, we don’t need to hear any more jurisdictional arguments from unions about whose territory is whose. Instead, we need to see successful union campaigns in which millions of new workers are unionized.

Want to claim “jurisdiction” in an industry? Then organize it. Otherwise, make way for those who will.

To the credit of America’s union leaders, their public reaction to the ALU victory has uniformly been one of support. But that same victory throws into relief how pressing it is for those same unions to change the way they’ve been doing business for the past half century. No more individual fiefdoms jealously guarding their own shrinking islands of union territory, while the majority of working people flounder with no support from organized labor. The ALU inspired us all by unionizing the first 8,000 Amazon workers in the United States. Organizing the next 800,000 will require the combined efforts of many unions, and then some.

Rich, ruthless, and omniscient companies like Amazon will not be organized solely with GoFundMe donations, as the Staten Island warehouse was. Now is the time for the labor movement to start building multi-union coalitions capable of tackling employers on a national scale, and keeping up the fight long enough to win contracts in the face of endless litigation — think something like the Change to Win coalition, but more active, and aimed at individual companies.

Building multi-union coalitions requires unions to recognize the futility of arguing over jurisdiction, and instead do the opposite: Combine forces and organize without freaking out over who gets to put their label on the end product.

ALU leader Chris Smalls, whose vision made the Amazon union victory a reality, has already become a celebrated figure. In the end, his greatest contribution to the labor movement might be that he’s served as a blaring wake-up call. There is no room for egos or territorialism in a country of 10 percent union density. This fight is going to be expensive. Everyone, ante up.

This blog originally appeared at In These Times on May 18, 2022. Reprinted with permission.

About the author: Hamilton Nolan is a labor writer for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere.


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Flight Attendants Push for Equal Benefits for Domestic Partners

Posted on by Kenneth Quinnell
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Kenneth Quinnell
Kenneth Quinnell

Flight attendants who work for Spirit Airlines filed a lawsuit against the airline for reneging on a contractual commitment to provide equal benefits for all employees by forcing employees who want health care coverage for their domestic partners into a lower-quality health care plan than the plan covering other employees. The flight attendants, members of the Flight Attendants-CWA (AFA-CWA), said that management is using procedural loopholes to avoid providing equal benefits. Todd St. Pierre, the AFA-CWA president at Spirit, said:

We are outraged that management refuses to treat the families of their employees equally. At a time when equality issues have sparked a social awakening across our nation, management’s trampling on employees’ rights is deplorable. Their discriminatory behavior must be rectified immediately. Flight Attendants worked hard to ensure that these rights were included in our legally binding contract so that we could provide health care security for our loved ones. Shame on Spirit management for their blatant disregard for equality and for turning their backs on their obligations.

In a related story, aerospace manufacturer Boeing Co. said that despite the passage of a referendum legalizing gay marriage in Washington State—where Boeing has significant operations—they were not required to provide same-sex couples with benefits, including pensions. While Boeing publicly says they are evaluating what the referendum means to them, SPEEA/IFPTE Local 2001 executive director Ray Goforth said that Boeing officials explicitly told him that the benefits would not be extended to same-sex couples.

Alaska Airlines flight attendants, also members of AFA-CWA, issued a statement supporting members of SPEEA at Boeing in their fight for equal rights. Alaska AFA-CWA President Jeffrey Peterson said:

“AFA has a longstanding commitment to equality regardless of sexual orientation, gender identity and gender expression which is why Alaska Flight Attendants stand in solidarity with our aviation colleagues at Boeing in their struggle for equal rights. With an all-Boeing fleet of aircraft, Alaska Flight Attendants depend on the professionalism and dedication of SPEEA members each and every day.

Voters in nine states across the nation have instructed their elected representatives to address marriage equality issues. Recently in Washington, all couples regardless of gender finally have the opportunity to legally marry. Yet, Boeing is refusing to recognize married couples equally.

We are all partners in the success of the aviation industry and we call on Boeing executives to provide equal benefits to all couples legally married under state law.”

This post was originally posted on AFL-CIO on January 14, 2013. Reprinted with Permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist.  Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.  Previous experience includes Communications Director for the Darcy Burner for Congress Campaign and New Media Director for the Kendrick Meek for Senate Campaign, founding and serving as the primary author for the influential state blog Florida Progressive Coalition and more than 10 years as a college instructor teaching political science and American History.  His writings have also appeared on Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.  He is the proud father of three future progressive activists, an accomplished rapper and karaoke enthusiast.


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