By Melanie Mignucci
In the modern workplace, employers commonly subject their workers to electronic monitoring and algorithmic management practices. Under the National Labor Relations Act (NLRA), this surveillance does not comprise an unfair labor practice because it is not “out of the ordinary.” But this interpretation is mistaken: Algorithmic management’s chilling effect on organizing is the same or worse than that of a manager monitoring emails for hints of a union campaign—a long-established unfair labor practice. The National Labor Relations Board’s (NLRB) former General Counsel has proposed a framework that would make this kind of surveillance presumptively unlawful and require businesses to give notice of the surveillance to employees. This Note argues that the NLRB should go further to address the threat that algorithmic management poses to workers’ right to organize. The Board should find algorithmic management practices unlawful and issue a narrow bargaining order to remedy electronic surveillance’s infringement on workers’ rights under Section 7 of the NLRA. Part I of this Note charts the evolution of algorithmic management and its treatment under existing legal regimes. It illustrates how these practices chill organizing efforts and thus violate Section 8(a)(1) of the Act. Part II proposes remedying this unfair labor practice with a narrow bargaining order. Part III addresses impediments to adopting this framework.