Work it Out Blog

No-Recording Rules in the Workplace

Jul 03, 2017 by Jill C. McQueen
When confronted with an employee who wishes to record a workplace meeting or other interaction, a management representative’s first reaction may be to refuse the request.  May an employer safely insist on a no-recording-at-work policy?  The issue was recently addressed by the United States Court for the Second Circuit. 
Employer Whole Foods enforced a rule prohibiting any type of recording of conversations, phone calls, or company meetings without the advance approval of management.  The employer justified the rule by saying it encouraged the free exchange of ideas and open and honest communications.  When the policy was challenged, the National Labor Relations Board took a different view, finding Whole Foods’ no-recording rule too broad to be lawful.
Under certain circumstances, taking photographs or making audio or video recordings may be “protected activity” under the National Labor Relations Act.  Employee recordings are protected if they meet two requirements:  that the employee is acting for the mutual aid and protection of workers and there is no overriding employer interest.  The NLRB offered several examples of when workplace recordings would be protected, such as documenting unsafe working conditions, capturing and sharing discussions about terms and conditions of employment, documenting the inconsistent application of workplace rules, taking images of protected picketing, and preserving evidence for later use in a hearing or trial. 
According to the NLRB, the fatal flaw of the Whole Foods rule against recording was that it did not distinguish between those recording activities that were protected by the National Labor Relations Act and those that were not.  The Board maintained that the rule should have been more narrowly tailored…although it offered no guidance on how the employer might do so. 
Whole Foods challenged the Board’s finding but, in a decision issued June 1, 2017, the Second Circuit affirmed the NLRB.  The Court held that the employer policy was unlawful because it could apply to protected as well as unprotected activity.  The ruling leaves many employers wondering how to establish and enforce rules and policies that will withstand legal scrutiny.  
The take-away from the Second Circuit decision is that policies on employee recordings should be narrowly tailored and carefully worded.  Employers with compelling reasons for enforcing a no-recording rule should consider writing those reasons into the policy itself.  Previous Board decisions suggest that the NLRB would consider client/patient/customer confidentiality an overriding employer interest that would justify the prohibition of some recordings in the workplace.  The policy itself should also make clear that the rule does not extend to recordings that are protected by federal labor law.
For questions about this issue and assistance about drafting workplace policies, contact Jill McQueen or any of Day Ketterer’s employment attorneys.  Call or email 330.458.2161.

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.