In the past, employees recording audio or images in the workplace might resort to the use of a bulky tape recorder, a hidden “wire,” camera, or other device secured in a purse, on their person, or even a hard hat.  Now that smart phones with professional-grade audio and video capabilities are an integral part of our society, clandestine (or blatant) workplace recordings are much more easily accomplished by employees.

With this increased ease of access to reliable and compact recording equipment has come a heightened employer sensitivity to workplace recordings. As a result, many employers are tempted to implement blanket policies prohibiting workplace recordings or otherwise that require management’s consent to make any workplace recordings. But employers should seriously consider the potential negative impacts of adopting such policies, as they may invite unfair labor practice charges.

Understanding the Law

While some limited prohibitions on workplace recordings are permissible—for instance, to protect confidential business information or private health information—in recent years, the National Labor Relations Board (NLRB or the Board) has criticized blanket policies prohibiting such activities.  The NLRB reasons that policies against workplace recordings may discourage employees from participating in concerted activity with other employees that safeguard their labor rights. In other words, such policies may “chill” employees’ ability to act in concert, and some courts have agreed. 

Pertinently, Section 7 of the National Labor Relations Act (NLRA or the Act) ensures certain employee rights, as follows:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

Further, Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. As posited by the NLRB, employers may not, “Promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees from exercising their rights under the Act.” The NLRB has found that, in many circumstances, blanket policies prohibiting workplace recordings tend to inhibit employees from exercising their rights under the NLRA.

For example, the Board has noted that workplace video and audio recording is protected if employees are “acting in concert for their mutual aid and protection” and the employer does not have an “overriding interest” in restricting the workplace recording.  Protection of confidential company information or personal health information can help an employer to demonstrate an overriding interest in restricting recordings, but if this burden is not met, the NLRB may find that an employer has committed an unfair labor practice.  As noted by the Board, a few examples of recordings made in concert for mutual protection that may outweigh an employer’s interest in any restrictions are recordings made to capture:

• unsafe working conditions
• evidence of discrimination
• “townhall” meetings or other conversations with management that have an anti-union sentiment; and
• conversations and meetings about terms and conditions of employment.

One of the most common challenges to workplace recording prohibitions involves conversations about terms and conditions of employment. This is due to the fact that “terms and conditions of employment” is broadly interpreted in the context of the NLRA. Terms and conditions of employment can be as trivial as demands for access to refreshments in a breakroom, or as substantial as salary increases or promotions.

Further, when evaluating whether to institute any workplace prohibition on recordings, employers should also consider whether any relevant state laws require “one-party consent” or “all-party consent” to a recording. In states that require only one party’s consent, employers may want to institute a policy requiring all parties’ consent to record workplace conversations. However, regardless of any state laws or employer policies that may require all-party consent for recording conversations, the NLRB has held that the NLRA preempts state law, and that protection of employees’ rights under the NLRA overrides concerns about state law recording consent violations. Thus, any workplace recording policy should be narrowly tailored to permit, or at the very least not discourage, recordings that are protected concerted activity under the NLRA. Taking such measures provides employers with a defense to unfair labor practice charges alleging violations of Section 7 and Section 8(a)(1) of the NLRA that employees may file with the NLRB.

Takeaways for Employers

Accordingly, in the event an employee violates a workplace policy prohibiting workplace recordings, employers should also consider to what extent—if any—such an employee should be disciplined for violating the policy. For example, taking disciplinary action against an employee for recording conversations related to protected health information may be a permissible reason to discipline that employee for violating such a policy. In contrast, taking disciplinary action against an employee for—in a concerted fashion with other employees—recording conversations related to improvements in workplace conditions may violate the NLRA and invite an unfair labor practice charge.

Employees who record workplace conversations or conditions may be engaged in concerted activities for the purpose of collective bargaining, so each circumstance that may be considered a concerted activity should be evaluated on a case-by-case basis. Thus, at a time when recording capabilities are packed into an ordinary, everyday device carried by nearly every employee in every workplace, employers who still wish to have a policy limiting workplace recordings should ensure that the policy lists valid reasons for implementing the policy, include a carve-out in the policy for protected concerted activities under the NLRA, and not require management approval for recordings that constitute protected concerted activities. Taking such measures will help to ensure the Board will not find an employer’s no-recording policy in violation of the NLRA.

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