NLRB Strikes Down Employer Policy Prohibiting Electronic Recording In The Workplace

The National Labor Relations Board (NLRB) continued its assault on employer handbook rules by invalidating an employer’s policy against electronic recording in the workplace.  See T-Mobile USA, Inc., 363 NLRB No. 171 (April 29, 2016).  The ruling signals that the current NLRB is intent on allowing, and encouraging, employees to use smartphone recording technology in the workplace to further both union-organizing drives and corporate campaigns in non-union workplaces.

In the T-Mobile decision, the NLRB reiterated its view that federal labor law protects employees’ right to make audio and video recordings at work if the employees are acting “in concert for mutual aid and protection.”  Id. at *4.   The NLRB went a step further by holding that employees have a right to post protected workplace recordings to social media.  Id.

The NLRB opined that a wide variety of workplace recordings could be protected under federal labor law, including recordings in non-union workplaces.  Id. at *4.   The NLRB offered the following examples of protected images and recordings:

  • Images of picketing,
  • Recording unsafe working equipment,
  • Recording unsafe working conditions,
  • Recording workplace conversations concerning terms and conditions of employment,
  • Recording the inconsistent application of employer rules, and
  • Recording conversations for use in employment-related legal claims.  Id.

The employer’s rule in T-Mobile prohibited all recording of people or confidential information.  Id.  The rule also prohibited any sound recordings of work-related or workplace discussions.  Id. at *3.  The rule contained exceptions for customers calls recorded for quality control, and for recordings approved by managers, HR, or the legal department.  Id.   The employer justified the rule as a means to prevent harassment, to maintain individual privacy, and to encourage open communication.  Id.

The NLRB struck down the employer’s rule on the theory that it was overbroad, and might “chill” employees from making protected recordings at work.  Id. at *4.  The NLRB noted that the rule made no exception for “protected concerted activity.”  Id.   The NLRB also concluded that the rule was not “narrowly tailored” to prevent workplace harassment.  Id.   The NLRB further held that, while some states prohibit nonconsensual recordings, the employer’s rule was not limited to those states.  Id.

Several states, including California, maintain statutes prohibiting non-consensual recordings of certain types.  See e.g., Cal. Pen. Code § 632(a).  The T-Mobile decision hints (but does not squarely hold) that the NLRB might approve an employer’s state-specific anti-recording policy that is predicated on that state’s individual law against non-consensual recordings.  See id.

The T-Mobile decision further solidifies the NLRB’s view that employees have a right to record at work under federal labor law.  As such, employers should exercise caution in disciplining employees for making unauthorized recordings at work, or for posting those recordings to social media.  Before taking disciplinary action, the employer should evaluate the facts surrounding the recording to determine whether the employee was engaged in “protected concerted activity.”   Further, employers should review their employee handbooks and policies to ensure that their anti-recording policies comply with federal labor law.

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