The NLRB Strikes Down Employer Rules Prohibiting Employees' Use Of Recording Devices

The issue of whether an employer can prohibit an employee from using recording devices in the workplace has been percolating in labor law for some time. While the risk of an employee recording a workplace meeting or conversation has always existed, that risk has significantly increased now that most employees carry cell phones with easy photography, recording and sharing capabilities. A variety of well-placed concerns have prompted many employers to develop rules restricting employees from recording workplace meetings, conversations, phone calls, and images without prior approval from management. Unfortunately for well-meaning employers, the National Labor Relations Board (NLRB) has determined that such rules are unlawful under the National Labor Relations Act (NLRA).

The NLRA guarantees employees the following rights: to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities. A rule adopted by an employer violates the NLRA if it explicitly restricts these rights or if it would "reasonably tend to chill employees" in the exercise of these rights.

The NLRB has determined that photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by the NLRA if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. As such, an employer who adopts a general workplace rule prohibiting employees from recording and photography has violated the NLRA. In striking down such general rules, the NLRB is seeking to protect employees' rights to engage in protected conduct, such as: 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 to preserve it for later use in administrative or judicial forums in employment-related actions.

The NLRB has reached a different result when the rule against recording is specifically linked to an important employer interest - for example: a health care employer protecting the privacy of patients. Finding the privacy of hospital patients to be a "weighty" concern, the NLRB has concluded that a medical center could lawfully prohibit employees from recording images of patients and/or hospital equipment, property, or facilities. It remains to be seen whether an employer could justify a recording ban specifically linked to another type of employer interest - such as a hotel-casino employer seeking to protect guests from unwanted photographs or recordings.

To learn more about the NLRB's stance and review two of the relevant cases in this area, see the NLRB's decisions in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino , 362 NLRB No. 190 (Aug. 27, 2015) (finding Rio's rule against use of camera phones or other recording equipment on property without permission to be unlawfully overbroad) and Whole Foods Market Group, Inc. , 363 NLRB No. 87 (Dec. 24, 2015) (holding that employer's rule prohibiting all recordings of conversations, phone calls, images or company meetings with a camera or recording device without prior approval would reasonably be construed by employees to prohibit activity protected by the NLRA). To discuss your specific recording/photography rule, please contact a KZA attorney.

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.