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Prohibiting use of recording devices may be unlawful

Feb 02, 2016

Contractors with policies restricting recordings, or the use of recording devices, including cellphones, would be wise to review their policies to determine whether they are written in such a way to not infringe on worker’s rights. Likewise, contractors seeking to implement a new policy should consult their labor counsel.

The National Labor Relations Board (NLRB) recently held that an employer’s rules prohibiting employees from taking photographs as well as using audio and video recording devices in the workplace can interfere with employees’ rights, absent a compelling need by the employer to maintain privacy. In an era when smartphones with recording capabilities are ubiquitous, this decision may have significant impact.

At issue in the case of Whole Foods Market Inc. v. United Food and Commercial Workers was Whole Foods’ rule prohibiting employees from taking photos or recording conversations in a store without a manager’s prior permission or unless all parties involved give consent. 

NLRB holds prohibiting recordings would inhibit employees’ rights

Whole Foods implemented the rule because it said recording of store meetings and “town halls” may chill the dynamic that the store promotes of allowing employees to speak freely and voice opinions about store management and other employees.

The NLRB found Whole Foods’ rule unlawful because of its potential chilling effect on employees' Section 7 rights under the National Labor Relations Act. Section 7 rights include the right to take action together with other workers for the purpose of collective bargaining or for protecting each other’s workplace rights.

The NLRB said workers have the right to use cell phones or other recording devices in their workplace to:

  • Document unsafe working conditions or hazards
  • Record uneven application of workplace rules 
  • Capture evidence to use in employment-relations actions (such as conversations revealing discrimination)
  • Record discussions about terms and conditions of employment. 

The NLRB reaffirmed its earlier rulings that photography and audio or video recording is protected in the workplace when done in the context of protected concerted activity or union activity. Where employees are acting together and for the mutual aid and protection of their coworkers, and no overriding employer interest is present, such conduct is protected by the Act. It is important to keep in mind that Section 7 rights do not only apply to union members, but extend to union and non-union workers equally.

When a ban on recordings in the workplace is justified

As the NLRB noted, it is possible for an employer to have an overriding interest that justifies the banning of pictures, recordings, and other uses of a cell phone during work. The Board has previously found that such a ban in the hospital setting to protect patient privacy interests is lawful.     

In the same way, an employer’s interest in ensuring workplace safety by eliminating distractions in dangerous locations such as construction sites or in manufacturing shops may similarly justify such a ban. Likewise, preventing the recording of sensitive business information could also be a potential justification. 

Some states require consent

Additionally, state laws on recording may still apply in certain scenarios. For example, California requires that parties to an audio recording or phone conversation must consent to its recording. Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington have similar consent laws related to recording.

If you have any questions, please contact SMACNA’s Labor Relations staff (jblanscett@smacna.org / (703) 803-2997).