I am the HR Manager for my company. These days, it seems as though everyone has a cell phone that is capable of making audio and video recordings. This is creating a problem in our workplace. For example, we hold weekly staff meetings so that employees can share problems in the workplace and brainstorm on possible solutions. These meetings used to be very lively and some good ideas emerged from them. Several weeks ago, however, one employee started recording the meetings on his phone. This caused the other employees to be uncomfortable. As a result, these once lively meetings now are dead; people are afraid to speak up because they are being recorded. To deal with this situation, I instituted a policy that employees cannot make audio or video recordings in the workplace without prior, management approval. The employee who originally started recording the meetings has told me that my policy is illegal. He is kind of a troublemaker. I would love to be able to tell him that he is wrong.
Sick of Cell Phones
Unfortunately, your employee is right. It is likely that your new policy runs afoul of section 7 of the National Labor Relations Act.
The Law: Under section 7 of the Act, employees have the right to engage in concerted activity for their mutual benefit and protection. Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. The National Labor Relations Board will find that a policy violates the Act if employees “would reasonably construe” that the policy prohibits their section 7 activity.
The problem with your new policy is that it is overly broad. It does not differentiate between recordings that are protected by section 7 and those that are not. As such, the NLRB will take the position that employees reasonably could construe your policy as prohibiting their section 7 activity.
Although it seems counterintuitive, employees often have the right to make audio and video recordings in the workplace, even if the recordings are made secretly. The problem with your policy is that it placed a blanket prohibition against all recordings. It would be possible to fashion a more specific policy that would allow you to restrict recording your weekly meetings but that would not be interpreted by employees as infringing on their other section 7 rights.
I certainly understand your frustration. It doesn’t seem right that employees should be able to make audio and video recordings in the workplace, especially if these recordings are made secretly. But, thanks to the advent of smartphones and an employee-friendly NLRB, that is the world in which we now live.
The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.