CAN AGENCIES BAN RECORDING DEVICES IN THE WORKPLACE?

For generations employers had the unquestioned right to prohibit employees from using or even bringing recording devices into the job site—although employers could use them if they wished on or against employees. It was an easy rule to enforce because most recording equipment was so large and bulky it was easy to spot. But with the arrival of smart phones millions of folks have audio-video recording equipment that is almost undetectable short of a full body pat-down. Now, in addition to the breakdown in the ability to physically enforce the rule, employers may also be losing the legal right to ban employee use of such equipment.An interesting decision just came out of the NLRB suggesting that employees have a right to use the equipment on the job site in connection with efforts to promote their “mutual aid and protection so long as no overriding employer interest is present.” In reversing an ALJ’s conclusion that employer could ban employee recording the Board said,

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.

Given that FLRA often follows what comes out of the NLRB this is an interesting precedent for those feds on either side of the bargaining table to factor into considerations of how things might be done differently. If interested in learning more about this new NLRB case, check out the article from the firm of Ogletree Deakins entitled, “Are You on Candid Camera? The NLRB Just Made It More Difficult to Ban the Use of Recording Devices in the Workplace.”