Now that nearly everyone can shoot videos and record conversations on their phones, can an employer enact policies to limit or bar this behavior at work? Maybe not, says the National Labor Relations Board (NLRB) in a series of recent agency decisions.
The NLRB contends that employers cannot maintain workplace rules that chill an employee’s exercise of their rights under Section 7 of the National Labor Relations Act (the “Act”). These Section 7 rights include the right to form, join or assist labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Close-Up on the NLRB’s Position
In a 2015 case involving national grocery chain Whole Foods, the NLRB ruled that the employer’s policy prohibiting the use of recording devices without management approval violated the Act. The NLRB noted that photography or recording, often done covertly, provides an essential protection for employees through “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence . . .” The NLRB specifically noted that the rule was overbroad because it applied to all recordings, thereby infringing on protected activity.
In a subsequent decision ironically involving cell phone company T-Mobile USA, Inc., the NLRB struck down a work rule banning recording “people or confidential information using cameras, camera phone/devices or recording devices (audio or video) in the workplace.” The NLRB found that the rule violated the Act because it (a) applied to recordings made during non-working time and in non-working areas, and (b) failed to differentiate between recordings that were protected and not protected by the Act. They further noted that T-Mobile’s goal in enacting the rule — maintaining privacy, protecting confidential information, and promoting open communications — were insufficient because “neither the rule nor the proffered justifications are narrowly tailored to protect legitimate employer interests or to reasonably exclude Section 7 activity.”
This trend continued throughout 2016 in various NLRB Administrative Law Judge decisions. For example, in Stericycle, Inc., 2016 NLRB LEXIS 813 (Nov. 10, 2016), the Administrative Law Judge invalidated a workplace recording rule because “rules placing a total ban on such photography or recordings, or banning the use or possession of personal cameras or recording devices are unlawfully overbroad where they would reasonably be read to prohibit the taking of pictures or recordings on nonwork time.” Similarly, in Cordua Restruants, Inc., 2016 NLRB LEXIS 813 (Dec. 9, 2016) the Administrative Law Judge applied the recording-device rule from Whole Foods and T-Mobile to cell-phones on the basis that nearly all modern cell-phones have cameras. The Administrative Law Judge noted that the rule in question was invalid because it did not contain a “safe harbor for protected activities.”
If you are going to regulate this sort of activity, remember:
∗ A complete and total ban is probably not going to pass muster. Therefore, tailor the policy to prohibit filming only of those activities in which there is a legitimate confidentiality interest, such as information about customers or vendors, or those matters that constitute legitimate trade secrets;
∗ Limit the ban to apply only to working time and working areas, or while otherwise conducting legitimate business activities. Even then, the NLRB might still find the policy unlawful if it has the effect of banning secret or surreptitious recording that supports or advances protected, concerted activity.
∗ Allow employees to use their cellphones/recording devices while on breaks, at meals or during other legitimate non-working time.
∗ If an employee is not recording activity for protected reasons, or is doing so for improper motives such as harassment or intimidation, the employee’s actions are not protected by the Act.
Any policy in this area must be carefully drafted and thoroughly reviewed. New decisions are coming out all the time, and the change in make-up of the NLRB that occurs with a new president could chart a very different course.