Navigating Bans on Recording Devices in the Workplace and Employee Rights

As smartphones have become an everyday facet of life at work, so too has their capability to make high-quality audio and video recordings. Increasingly, employees are using phones and other recording devices to photograph or video their workplaces and to record conversations with management and co-workers. Because businesses need to protect their proprietary and confidential information, many companies have policies prohibiting all use of recording devices while on the job. Recent decisions by the NLRB and the courts, however, have called many of these policies into question. It is important for employers to understand employee rights under the National Labor Relations Act to ensure that employers are maintaining policies that protect their business interests without infringing on the rights of employees.

In June 2017, the Court of Appeals for the Second Circuit affirmed an NLRB decision in Whole Foods v. NLRB, holding that Whole Foods could not maintain a broad ban on recording devices in its workplace. The Whole Foods ban prohibited all recording unless approved by management. Whole Foods had argued that the ban was intended to foster open discussion and honest dialogue among management and employees, which are otherwise chilled by the use of recording devices.

Section 7 of the Act and the Whole Foods case

Section 7 of the Act guarantees employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, a work rule or policy that interferes with an employee’s ability to engage in protected concerted activities violates the Act. Even when a rule or policy does not explicitly interfere with protected activities, the rule or policy would still constitute a violation if employees would “reasonably construe the language to prohibit protected activity.” The NLRB has identified protected concerted activities involving the use of recording devices to include the following:

• Employee recording of images of protected picketing.
• Documenting unsafe workplace equipment or hazardous working conditions.
• Documenting or publishing discussions about the terms and conditions of employment.
• Documenting inconsistent application of employer rules.
• Recording evidence to later use in judicial or administrative proceedings.

In Whole Foods, the NLRB found that a policy placing a ban on recording conversations, phone calls, images or company meetings violated the Act because employees could construe the policy to prohibit protected activity. Whole Foods’ rationale for the policy was to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust.” Despite this rationale, the NLRB found the policy to be a violation of the Act. The NLRB noted that although the policy contained “language setting forth an intention to promote open communication and dialogue,” this language did not make up for the policy’s “overbreadth.” On an appeal taken by Whole Foods, the Second Circuit affirmed the NLRB’s decision.

Prohibited Policies vs. Non-Prohibited Policies

Blanket or overbroad restrictions “on use or possession of recording devices” violate the Act. However, bans on recording devices or recording in the workplace may be lawful as long as their scope is appropriately limited.

A recent settlement agreement reached between Wendy’s International, LLC and the NLRB illustrates how narrowing a no-recording policy may avoid violating the Act.

The original Wendy’s handbook policy that the NLRB found violated the Act provided that:

• “Due to the potential for issues such as invasion of privacy, sexual harassment, and loss of productivity, no Crew Member may operate a camera phone on Company property or while performing work for the Company. The use of tape recorders, Dictaphones, or other types of voice recording devices anywhere on Company property, including to record conversations or activities of other employees or management, or while performing work for the Company, is also strictly prohibited, unless the device was provided to you by the Company and is used solely for legitimate business purposes.”

The updated handbook policy promulgated pursuant to the NLRB settlement agreement provides:

• “Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment/discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety, and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.”

By narrowing the scope of its no-recording policy and including a specific exception for Section 7 protected activity, Wendy’s was able to maintain aspects of the policy intended to protect its business interests while also avoiding violating the Act.

Conclusion

Employers should continually review and update their no-recording policies, keeping in mind that:

• Broad, blanket bans on recording devices likely constitute violations of the Act.
• No-recording policies may be maintained to protect proprietary or confidential business information.
• Policies should be crafted such that employees would not reasonably interpret them to prohibit protected activities like documenting health or safety conditions or conversations about the terms and conditions of employment.

For more information regarding the NLRA and no-recording policies, please contact a member of Robinson Bradshaw’s Employment and Labor Practice Group.

This article was prepared with the assistance of Devon Sherrell, a rising 2L at Emory University School of Law.