A number of years ago, one of the nation’s largest grocery stores banned its employees from recording workplace conversations, images, or meetings without prior management approval or consent by all parties to a conversation. Sounds reasonable, right? Not to the NLRB, which recently ruled that the employer’s recording restrictions violate the National Labor Relations Act. The ruling serves as guidance (and a warning) to employers that would like to prohibit recording in the workplace, and indicates that before instituting a recording restriction, an employer should first carefully consider whether such a restriction is really necessary in its workplace. If the employer concludes that it is, the employer should:
The recent decision involving the grocery store is not the first time the board has warned employers about adopting workplace recording bans, but rather puts into play principles the NLRB sought to “clarify” in 2015. Last year, the NLRB’s general counsel issued a memorandum which offers some limited guidance on the question of workplace recording restrictions. First, the memorandum provides several examples of impermissibly broad recording prohibitions:
The memorandum went on to explain that “where the employer has a well-understood, strong privacy interest, the [NLRB] has found that employees would not reasonably understand a [recording restriction] to limit pictures for protected concerted purposes.”
Fast forward now to the recent NLRB decision applying these principles. Before the NLRB, the employer offered examples of types of meetings held in its workplace that routinely involved discussion of sensitive employee or confidential business information. The company explained that the recording restrictions were necessary to protect uninhibited communication in these contexts. The NLRB rejected this explanation, concluding that it was not sufficiently compelling to justify policies that could be reasonably seen as prohibiting protected concerted conduct (such as documenting and publicizing the terms and conditions of employment). The NLRB distinguished this case from one involving a hospital that prohibited employees’ use of cameras in an effort to protect patient privacy. Because of the strong privacy concerns inherent in patient care, the NLRB previously upheld a recording restriction in this context.
The recent decision highlights the need for employers to proceed with caution when it comes to employee recording restrictions. Unfortunately however, despite a memorandum and now a decision applying the principles of that memorandum, the NLRB has still offered only minimal practical guidance on permissible recording restrictions. Employers should thus strongly consider following the steps outlined above to decrease the risk that a recording restriction is found to be in violation of the National Labor Relations Act.