NLRB Finds Unlawful Employer's Rule Against Recordings And Rule Requiring A Positive Work Environment

Volume 15, Issue 15
July 6, 2016

In January, we discussed the National Labor Relations Board's (NLRB) current position on employer rules against employee recordings. In late April, the Board issued another decision on this issue in the case of T-Mobile USA, Inc.

T-Mobile's rule prohibited employees from "recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace" and from taping or making "sound recordings" of "work-related or workplace discussions." The NLRB determined that this rule was unlawfully broad. Because the rule did not differentiate between recordings that are protected by the National Labor Relations Act (NLRA) and those that are not, and included recordings made during nonwork time and in nonwork areas, the NLRB determined that "employees would reasonably read the rule to prohibit recording that would be protected" by the NLRA. While the employer's rule set forth seemingly legitimate reasons for prohibiting employee recordings, the rule was not narrowly drafted to address those reasons and still protect employees' rights.

The NLRB also struck down the employer's rule that its employees "behave in a professional manner that promotes efficiency, productivity, and cooperation" and "maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management." The NLRB determined that "employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions," including those protected by the NLRA, "out of fear that the [employer] would deem them to be inconsistent with a 'positive work environment.'"

This decision demonstrates the NLRB's continued attack on legitimate employer work rules. If you are revising or updating your employee handbook this year, please contact a KZA attorney to discuss which rules may be subjected to such scrutiny by the NLRB and what options are available to you.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.