Employers Should Take Care When Prohibiting Workplace Recordings

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:

• Expressly identify the compelling concerns that make the restriction necessary. For example, in a health care setting, explain that the restriction is necessary to protect patient privacy. Keep in mind that protecting sensitive employee or confidential business information may not be adequate.
• Draft the restriction as narrowly as possible to address those compelling concerns.
• Explain what is not covered by the restriction, including explaining that the restriction does not bar employees from engaging in protected concerted conduct.
• Consider state law. Some states have laws that prohibit recording conversations unless all participants in the conversation consent to being recorded. You may be safer in restricting recording, if you specifically tie the restriction to an applicable state law.

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:

• A prohibition on “taking unauthorized pictures or video on company property”
• “No employee shall use any recording device including but not limited to audio, video, or digital for the purpose of recording any employee or operation”
• A prohibition on use or possession of personal electronic equipment on employer property
• A prohibition on wearing cell phones, making personal calls, or viewing or sending texts “while on duty”

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.