It is not unusual on construction sites, where you have a variety of different employers present, that disputes erupt that impact the entire work site. Sometimes this can result in a number of different forms of employee protest and this decision by an Administrative Law Judge, which issued on December 8, 2017, provides a good framework for analyzing what is lawful versus unlawful conduct by an employer in responding to such activity.

In the cited situation a group of employees for a subcontractor were protesting what they believed to be substandard wages on the work site. They engaged the assistance of the unions on the job site to support them, which resulted in picket signs appearing at various points surrounding the construction site, and which also resulted in the blocking of entrances along the roadways adjacent to the work site. A senior safety director for the project manager observed all of this activity and took photos of some of the activity, as well as videos. The union filed charges alleging such was unlawful surveillance.

The ALJ found that such conduct was lawful. The legal test in this situation is two-fold. One, whether the employer, by observing the employees’ conduct, was acting out of the ordinary; and two, whether the employer’s taking of photos or videos of the employees’ activities was with some legitimate justification, such as where employee misconduct was reasonably foreseeable. Justification was found here as it was not mere speculation that misconduct might occur, it actually occurred. Moreover, the safety director had a common practice of being in the area where he was observing the employees’ conduct, so his conduct of observing the employees’ behavior was not out of the ordinary. Further, the case also reestablished the law that it is lawful to photograph or video strikers as possible evidence in the use of legal proceedings, or to otherwise use as proof of misconduct (trespassing, obstructing traffic, or blocking ingress or egress to the employer’s facility).

Bottom line, this case does not change the law regarding these sorts of activities, but reinforces the right of employers to monitor the misconduct of employees.