This post is the fourth in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules, found here and regarding Employee Conduct Rules, found here and regarding Rules Related to Company Logos, Copyright, and Trademark. While the recent guidance was issued by the National Labor Relations Board (NLRB) (view the full Memorandum here), this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.
When Do Restrictions on Photography and Recording Go Too Far?
When it comes to rules restricting an employee’s ability to take photographs or make recordings, the NLRB recognizes that employers have legitimate interests, such as maintaining the confidentiality of business records and protecting the privacy of employees and customers. However, those interests must be balanced against employees’ rights under Section 7 of the NLRA to take photographs or make recordings in furtherance of protected concerted activity, such as documenting unfair labor practices or health and safety violations. Accordingly, the key when drafting or reviewing such policies is to ensure they are sufficiently limited in scope and could not reasonably be read to prohibit taking pictures or making recordings on non-work time.
While context always matters, a few key guidelines emerge from the NLRB report:
• DO NOT impose a broad ban on use of recording devices on employer property.
• DO NOT impose a broad ban on use or possession of personal electronic devices, such as cell phones, computers, or data storage devices.
• DO NOT prohibit employees from using personal electronic equipment “while on duty,” as this could be interpreted to restrict such use during rest and meal breaks occurring during an employee’s shift.
Finding a Policy That Protects Employers’ Interests and Section 7 Rights
The NLRB has provided one example of a policy that strikes the right balance:
• “Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment/discrimination policy), [and] protection of proprietary [information, employees] may not take, distribute, or post pictures, videos, or audio recordings while on working time. [Employees] also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activities protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.”
This policy was found to be narrowly tailored enough to protect employees’ Section 7 rights while still addressing the legitimate interests of the employer.
As always, it is important to remember that context matters when evaluating employer policies, handbooks, and rules. For instance, the NLRB has found that a no-photography rule instituted in response to a breach of patient privacy at an employer with a well-understood and strong privacy interest did not infringe on employees’ Section 7 rights because it would not be reasonably understood to limit taking pictures for protected concerted purposes. See Flagstaff Medical Center, 357 NLRB No. 65, slip op. at 5 (Aug. 26, 2011), enforced in relevant part, 715 F.3d 928 (D.C. Cir. 2013). Therefore, be sure to consider the particular circumstances of the employer and how employees could reasonably interpret policies restricting photography and recording when reviewing policies of this nature.