NLRB Expands Focus to Worker Debt and Surveillance

13 March 2023 Labor & Employment Law Perspectives Blog
Author(s): Scott T. Allen

Last week, the National Labor Relations Board (NLRB) entered into an information sharing agreement with the Consumer Financial Protection Bureau (CFPB), intended to crack down on “employer-driven debt” as well as worker surveillance and selling of personal data. This move represents an expansion of the agencies’ traditional focus aimed at protecting workers, as part of the Biden Administration’s efforts to protect workers as part of a “whole-of-government approach” (as NLRB general counsel Jennifer Abruzzo put it in the press release).

With respect to “employer-driven debt,” the Biden Administration claimed in a March 2022 report that repayment agreements — in which an employer covers training, education or other costs and requires an employee to pay back costs if they do not remain employed for a certain period of time — are anti-competitive because they discourage workers from leaving a job to avoid repayment costs (similar to non-compete agreements, which the Federal Trade Commission has proposed banning). Such repayment agreements have long been recognized as permissible under federal law where training or education is voluntary and separate from the job.

It would be unprecedented for either the NLRB (tasked with protecting labor rights) or the CFPB (tasked with protecting consumers rather than employees) to regulate worker repayment obligations or “debt.” The agencies’ press release calls out “gig economy” workers, who are typically classified as independent contractors and are therefore responsible for their own costs, e.g., supplying their own vehicles and equipment. The NLRB protects employees and not independent contractors, so this focus on the gig economy goes beyond the agency’s traditional mandate.

With respect to surveillance, the NLRB previously emphasized that it would enforce employer monitoring of employees in the workplace, including in an October 2022 general counsel memorandum (GC 23-02). The NLRB is concerned that employers are using GPS tracking devices, cameras, and other technology to monitor workers and potentially deter union and other protected activity. The NLRB and CFPB’s latest announcement takes this concern further and indicates that tracking of employees’ activities outside of working hours and sale of data to third parties (by surveillance companies) may violate consumer protection laws, including the Fair Credit Reporting Act. Again, the NLRB’s focus on this consumer issue and the CFPB’s focus on employment is beyond the agencies’ traditional purview. The extent to which the federal government may seek to hold employers responsible for the actions of other businesses that possess employee data remains unclear.

Stay tuned for further regulatory action by the NLRB and/or CFPB related to worker debt and surveillance. In the meantime, employers should consider reviewing repayment agreement and technology and data collection practices to ensure compliance with applicable laws.

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