November 11, 2018
These days, just about everyone is walking around with a device that can take pictures, videos, and audio recordings of anything at any time. In the workplace, this means employees can record conversations and events that take place at work. In most states, employees can record conversations they are having – including conversations with supervisors and co-workers – without disclosing that they are doing so. It can be done in secret, without breaking the law.
Many employers aren’t comfortable with the idea of employees making recordings or taking videos and pictures inside their facilities. They may have concerns about privacy or confidentiality. Or they may just not like the idea of this going on at work. Some employers have responded by instituting policies that prohibit such activities, and that provide for disciplinary action to be taken against employees who engage in them.
Are such policies legal? You may be tempted to respond, “Why wouldn’t they be? Doesn’t any property owner have the right to dictate what activities are allowed on his or her property?”
It’s not that simple when it comes to places of employment. This is because of a federal law called the National Labor Relations Act, or “NLRA”. This act guarantees the right of employees to engage in “concerted activity” for their mutual welfare or benefit. The National Labor Relations Board, which enforces the NLRA, has ruled that a blanket policy prohibiting ALL recording of workplace activities is illegal, because at least SOME such recordings might be part of a “concerted activity” that is protected by the NLRA.
For instance, if an employee wanted to take a picture of a message posted by the employer on a bulletin board, to share with her co-workers for the purpose of convincing them they needed to unionize, that could be considered protected activity under the NLRA. A broad policy that prohibited ANY picture taking on the employer’s property could therefore break the law, because it would prevent this kind of “concerted activity” by employees.
Prohibition of SOME kinds of recordings at work is fine. But employers need to be careful not to go too far. Be sure to consult with qualified employment counsel if you have questions about this area.