Hunton Employment & Labor Perspectives

In the past, employees recording audio or images in the workplace might resort to use of a bulky tape recorder or a hidden “wire” or camera.  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.

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 require management consent to make any workplace recordings.

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. 

Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) ensures employees’ “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 the right "to refrain from any or all such activities."  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.

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 recording.  As noted above, protection of confidential company information or personal health information can help an employer to demonstrate an overriding interest in restricting recordings.  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 with anti-union sentiment; and
• conversations about terms and conditions of employment.

Regardless of any state laws that may require two-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, 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 can help to ensure the Board will not find an employer’s no-recording policy in violation of the NLRA.