The National Labor Relations Board has held that employees have a broad right under federal labor law to discuss their “wages, hours and working conditions” on social media. But the NLRB has yet to deal with the convergence of next-generation recording technology and social media. Will the NLRB expand its social media doctrine to protect workplace recording so long as the employee intends to use the recording to discuss working conditions on social media?

In fact, the NLRB's general counsel is already pursuing an enforcement agenda that protects certain workplace recordings under labor law. In furtherance of that agenda, he is issuing administrative complaints against employer handbook policies that impose an outright ban on workplace recording, or require employees to obtain advance permission from management before making such recordings. The NLRB's general counsel argues these anti-recording policies unlawfully “chill” protected activities. To date, several administrative law judges have adopted aspects of the NLRB's general counsel’s enforcement position. Because the NLRB's general counsel has the exclusive authority under federal law to prosecute unfair labor practices his enforcement agenda plays a key role in shaping future labor law.

Employers are understandably concerned about the NLRB general counsel’s stance. Smartphones have made high-definition video cameras available to employees across a wide spectrum of industries. Wearable recording technology is also advancing at a rapid pace. For example, GoPro sells an inexpensive HD camera that can easily be mounted on a hard-hat to record continuously for several hours. And emerging technology such as Google Glass suggests that employees may soon be able to wear microcameras that can be controlled by voice.

More importantly, the next generation of recording devices is embedded in the architecture of social media. Employees can seamlessly upload their smartphone recordings to a variety of social media sites, such as Instagram, Facebook, YouTube, and Vine. Employees may even be able to livestream their workplace recordings directly to social media platforms.

There is little case law on this topic from the full NLRB, although the board has held that acute-care hospitals may prohibit employee recording in the presence of legitimate patient confidentiality concerns. However, given the current NLRB's passion for social media issues, particularly in the nonunionized workplaces, employers should brace for an eventual board decision expanding the rights of employees to record workplace activities in support of “mutual aid and protection.”

It will take some time for the NLRB and courts to flesh out the scope of workplace-recording rights. In the meantime, employers should be aware that the NLRB's general counsel will probably issue a complaint against any handbook policy that purports to impose an outright ban on all workplace recording. Further, employers should ensure that any policies prohibiting or even restricting workplace recording are based on legitimate business justifications and not applied in a discriminatory manner.

Recent ALJ Decisions

In Muse School CA, 31-CA-108671 (Sept. 8, 2014), a private school maintained a nondisclosure and confidentiality agreement that prohibited employees from publishing any recordings of the voice or likeness of the school’s celebrity benefactors. The ALJ held that this rule unlawfully chilled employees from making protected recordings, including recording “unlawful activity” or “strike efforts.” The ALJ rejected the employer’s argument that the privacy interests of the school’s celebrity benefactors, their clients and the students outweighed the right of employees to make protected workplace recordings.

In Professional Electrical Contractors, 34-CA-071532 (June 4, 2014), the ALJ struck down an employer’s handbook rule that prohibited employees from taking pictures at work or making recordings without management approval. The employer argued that the rule was necessary to ensure customer privacy and encourage frank communication among employees and managers. In rebuttal, the NLRB's general counsel argued the rule prohibited employees from recording a broad range of Section 7 activity, including picketing, social media communications and collecting evidence for NLRB charges. The ALJ acknowledged a “legitimate conflict of principles” on the question, but sided with the NLRB's general counsel in finding the employer’s anti-recording rule to be unlawful.

In Boeing Company, 19-CA-090932 (May 15, 2014), the ALJ invalidated an employer’s rule that prohibited employees from using their personal cameras to take pictures of the plant without a permit issued by the employer. The employer justified its rule on the need to protect confidential business and security information regarding its manufacturing process. But the ALJ rejected the employer’s trade secret defense as an unbelievable “smokescreen.” In so holding, the ALJ observed that the employer routinely held plant tours where members of the general public could freely take pictures of its manufacturing line. Thus, the ALJ concluded, the employer’s rationale regarding trade secrets was mere pretext.

Conversely, in Whole Foods Markets Inc., 01-CA-096965 (Oct. 30, 2013), the ALJ upheld an employer’s rule against workplace recording. Noting that the National Labor Relations Act protects “organizational activity,” but not the “means of communication,” the ALJ concluded that the employer’s anti-recording rule did not restrict protected concerted activity. The ALJ also noted that the employer justified its longstanding rule on the legitimate business justification of encouraging full and frank communication between employees and supervisors, including in regularly held town hall meetings.

NLRB Case Law

To date, the NLRB has only addressed an employer’s anti-recording rule in the acute-care hospital setting. In Flagstaff Medical Center Inc., 357 NLRB No. 65 (2011), the NLRB upheld the employer’s anti-recording rule based on the “weighty” privacy interests of the hospital’s patients. The NLRB noted that federal privacy law prohibits the unauthorized disclosure of a patient’s health information. As such, in a hospital environment, the NLRB concluded that employees would not reasonably construe an anti-recording rule as reaching Section 7 conduct, but rather as a legitimate means of protecting patient confidentiality.

NLRB Should Reject the General Counsel’s Enforcement Position on Workplace Recordings

A fundamental precept of labor law is that “working time is for work.” Stoddard-Quirk Mfg. Co., 138 NLRB 615, 617 (1962). As such, most employers can prohibit employees from distributing literature anywhere in the interior of the employer’s facility. Employers can also prohibit employees from soliciting while they are on working time. Moreover, an employer can generally prohibit off-duty employees from entering the interior of its facilities, provided it does so in an evenhanded manner. See Tri-County Medical Center, 222 NLRB 1089 (1976). These principles are founded on the understanding that the employer may exercise its rights to manage its property and its business, provided it does not discriminate against union activity. One cannot square these bedrock principles of labor law with the notion that employees have an unfettered right to make personal recordings on working time or inside the employer’s plant.

In limited circumstances, the NLRB holds that an employer’s right to manage its business must yield to certain core Section 7 activities. For example, absent special circumstances, an employee typically has a right to wear a union button while on duty. See Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). However, the act of recording is far more disruptive to the workplace and business operations than passively displaying union insignia. Instead, the act of recording affects the conduct of the party making the recording, and the conduct of the party being recorded. An employee cannot be expected to perform work tasks optimally when the employee is actually preoccupied with “getting the perfect shot.” Moreover, a supervisor may be inhibited from effectively supervising subordinates if the supervisor believes he or she is being recorded. Recording — even passive recording — is more akin to solicitation and distribution, than wearing union insignia. Thus, the longstanding rules applicable to solicitation and distribution should also apply to workplace recording.

Advice to Employers

Employers should be aware that blanket policies against recording in the workplace will likely draw a complaint before the NLRB if challenged. Although the law on this topic remains unsettled, employers who desire to maintain anti-recording policies should vet their current policies for maximum defensibility. In particular, employers should confirm that their anti-recording policies do not discriminate against union conduct, either in their verbiage or application.

Further, employers should assess the business justifications for the anti-recording rule and tailor the rule to those business justifications. For example, does the employer base its anti-recording rule on protecting business confidentiality and trade secrets? If so, it may consider restricting the rule to areas of the employer’s premises containing confidential, trade-secret information. Or the employer may decide to prohibit any employee recording on the interior of its plant, but allow recording on the exterior of its plant by off-duty employees. Does the employer justify its rule on a need to ensure the privacy of customers or guests? If so, it should be prepared to articulate the “weighty” privacy interests of its customers to a skeptical NLRB.

In summation, there may be several business justifications for a rule against workplace recordings, but employers should thoroughly vet those business justifications before implementation.

This article appeared in Law 360 on October 31, 2014.