Authored by Robert S. Seigel
Jan 06, 2016
Tiny, inconspicuous digital recording devices, including those found on many cellphones, have become ubiquitous in the workplace. The prevalence of these recording devices triggers legitimate employer concerns about privacy, the potential for harassment, the risk of distracted employees, and the protection of trade secrets and other confidential information. Because of these concerns, many employers have limited or banned the use of cameras and recording devices from the workplace. In a recent decision, the National Labor Relations Board (the NLRB or the Board) held that a blanket ban on possession and/or use of such devices in the workplace violates the National Labor Relations Act (the NLRA).
On Dec. 24, 2015, the NLRB issued its decision finding that Whole Foods, Inc. violated the NLRA by prohibiting employees from recording conversations with a tape recorder or other recording device without prior approval from management. According to the NLRB, Whole Foods’ policy was overly broad because it prohibited employees from recording — without prior approval — concerted activities protected by the NLRA. For example, the policy prohibited recording a group of employees complaining to a manager about their pay or benefits or disciplinary action unless the manager agreed to the recording. Although Whole Foods’ policy only related to recording conversations, the NLRB expressly broadened the scope of its decision by including still photography or video recording. Thus, the NLRB’s decision applies to most cellphones as well as devices with a narrower utility focus such as cameras or digital recorders.
The NLRB’s decision is certain to create a compliance nightmare for employers. In its decision, the NLRB recognized that it was leaving unresolved the question of whether an employer can lawfully ban recording during working time of the employee doing the recording or the employees being recorded. In this respect, the NLRB created the same type of ambiguity that now exists for employee use of email or internet access during working time. This ambiguity has a dual aspect:
1. Can an employer lawfully restrict such activities to non-working time in the same way it is privileged to restrict other forms of solicitation or distribution of literature?
2. Can such a policy be effectively policed, and compliance assured without raising the specter of disparate treatment? Moreover, the NLRB left unresolved the issue of whether an employer must allow such recordings in states that require consent of all parties before a conversation can be recorded.
The Whole Foods’ case leaves employers with a dilemma. Policies prohibiting voice or video recording in the workplace support many critical concerns. In addition to those mentioned above, some employers, particularly those in the health care industry, have obligations mandated by statute to protect client or patient privacy. The NLRB recognized the legitimacy of such concerns but cavalierly declared that these concerns can be accommodated by narrowly tailoring prohibitions against recording. Employers must now balance compliance with potentially conflicting laws as well as policy considerations underlying the protection of personal privacy. Achieving that balance will require consultation with counsel to design the best policy for a particular employer.
The attorneys at Lowenbaum Law can assist you in this process. For more information, or to discuss this issue further, please contact our Labor Relations Team.