NLRB: Workplace recordings promote protected concerted activity.
In a decision issued last week, the Board concluded that an employer could not maintain a workplace rule that banned employees from recording workplace conversations, absent prior company approval.
That the rule contains language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth. The Respondent’s witness testified that the rules apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” Thus, the Respondent has effectively admitted that the rules cover all recording, even that which is part of the res gestae of protected concerted activity. In light of the broad and unqualified language of the rules and the Respondent’s admission as to their scope, we find that employees would reasonably read the rules as prohibiting recording activity that would be protected by Section 7.
Remember, Section 7 applies to both unionized and many non-unionized workplaces. Indeed, the employer in this case was non-union.
So, can I record my co-worker’s poopy bathroom sounds?
Yeah, not so fast, sicko.
Still, there may be situations in which privacy interests outweigh the right to engage in protected concerted activity. For example, the Board highlighted a prior decision in which a Board majority found that an employer policy that prohibited the use of cameras for recording images in a hospital setting was ok. Similarly, there’s this Board precedent, where a panel majority struck down rules banning the use of cameras, camera phones, audio visual recording equipment and other recording devices.
Even the most recent Board decision decrying a universal workplace-recording ban strongly suggests that a qualified recording ban (e.g., trade secrets, customers, patients, and poopy sounds are off limits) would be ok. Plus, there are many states with laws requiring two-party consent for recordings.
So, add to your New Year’s HR checklist a review of your employee handbook to ensure that it is carefully tailored to restrict workplace recordings.
Image Credit: “RadioShack-ctr-119” by Evan-Amos – Own work. Licensed under Public Domain via Commons.