Tag Archives: NLRB

Workplace Video & Audio Recording

Can Employees Be Prohibited From Video and Audio Recording at Work?

voice recorderState and federal laws vary on what types of notice and consent are required to electronically record a conversation, whether at work or otherwise.  For example, in Pennsylvania all parties to the conversation must give consent to the recording. In contrast, New Jersey allows recording if only one party to the conversation consents to it.

Now comes the National Labor Relations Board (NLRB) and tells all employers and employees nationwide that an employer’s complete prohibition on audio and video recording at work is unlawful, because it violates employees’ rights to engage in concerted activity relating to the terms and conditions of their employment.

In the December decision, the NLRB invalidated the work rules of Whole Foods Market, Inc., which provided that employees could not “record conversations, phone calls, images or company meetings with any recording device . . . unless prior approval is received from [management].”  Whole Foods stated that the purpose of the policy was to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

The NLRB ruled that Whole Foods’ prohibition was too broad and could be read to infringe on the right of employees to engage in concerted activity with each other relating to the terms and conditions of work.  Said the NLRB, “our case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right.”  The NLRB cited examples of recording unlawful threats by employers, unlawful solicitation of grievances by employers, and the use of photographs to document improper conduct by an employer.

Note, however, that the majority did concede that in some circumstances – such as when patient or customer privacy concerns are at issue, or the employer is seeking to protect its trade secrets – a narrower ban on electronic recording could survive scrutiny.

The decision provides a good prompt for employers to consider whether they need an updated, sufficiently tailored policy to restrict electronic recording at work.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

 

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Employee Rights, Employer Policy, Employer Rights, National Labor Relations Board, NLRB, Section 7 Rights Under the NLRB, Union

Hats off to the NLRB.

An administrative law judge for the National Labor Relations Board ruled recently that an employer policy prohibiting the wearing of baseball caps other than the employer’s caps violated workers’ Section 7 rights under the National Labor Relations Act.

This might sound like bald overreaching, but the policy had the effect of precluding employees from displaying union logos or other protected messages on their hats. Under the Act, employees generally are allowed to display union insignia in the workplace, unless the employer can establish a special rule or reason to prohibit them.

In this case, Quad Graphics, Inc., decided July 31, 2013, the employer proffered a hat trick of three reasons for the rule, all of which the judge rejected:
Safety reasons, to keep hair out of machinery — but, alas, the judge found no evidence that union hats were less safe than employer hats;

  1. Fear of gang activity, i.e., that other hats might encourage it — despite the lack of evidence of gang activity (but it sounded good!); and
  2. Better employee-customer interactions — which might have prevailed, but for the lack of any evidence that the workers interacted with customers.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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