Over the past several years, a growing number of businesses that utilize delivery drivers have begun installing dashcam and similar surveillance technologies in their vehicles. This is for a host of a reasons, including to protect employee and customer safety, ensure driver efficiency, and monitor vehicle location. In response, the National Labor Relations Board (NLRB or the Board) has issued a string of guidance addressing the interplay between workplace surveillance technology and worker rights under the National Labor Relations Act (NLRA or the Act).

By way of background, in an October 31, 2022 memorandum (the “Memorandum”), NLRB General Counsel Jennifer Abruzzo (the “General Counsel”) urged the Board to adopt strict standards with respect to workplace surveillance technologies. The Memorandum opines that employers’ rights “to oversee and manage [their] operations with new technologies [are] ‘not unlimited.” The General Counsel then proposed that the NLRB adopt an expansive, labor-friendly standard under which employers are found to have presumptively violated the Act when “surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”

Unfortunately, the Memorandum is light on clarity. A separate, more recent memorandum issued by the NLRB’s Division of Advice (DoA), however, provides insight into how the agency may analyze the use of dashboard cameras in company vehicles going forward.

To that end, in an April 3, 2023 memorandum, DoA directed an NLRB regional director to not bring a case against a company that was alleged to have interfered with workers’ rights under the Act by installing, in its delivery vehicles, dashboard cameras that captured video snippets of 10-20 seconds whenever the camera detected unsafe driving incidents. In finding that the employer’s installation of such cameras did not “tend to interfere with or prevent a reasonable employee from engaging in protected activity”, DoA considered several factors. First, DoA found that use of the cameras was narrowly tailored to a legitimate business need – namely, because the employer’s insurance broker had suggested it do so. Second, the employer disclosed the use of the cameras to employees, including its reasons for doing so and how it would store and use the information obtained. And third and finally, the DoA found probative the fact that employees had the ability to turn off the inward-facing cameras.

In light of the above, employers hoping to install dashboard cameras should: (1) determine the business reasons supporting the use of the technology and clearly articulate these reasons in a written policy; (2) disclose the use of the technology to employees, including the reasons for doing so and how data will be collected, stored, and used; and (3) document communications relating to the adoption, implementation, and disclosure of the technology.