Both the Illinois Labor Relations Board (“ILRB”) and the National Labor Relations Board (“NLRB”) have found that employers are prohibited from unilaterally recording audio and video of unionized employees without first bargaining over the use of recording technology because it impacts wages, hours, and working conditions and thus constitutes a mandatory subject of bargaining. When it comes to an employee seeking to record conversations in the workplace, however, there is a very different position taken.
Employers often prohibit employees from recording their conversations in the workplace. Many practical reasons exist for enforcing this kind of workplace prohibition on recording conversations in the workplace. Not only might the person being recorded be unaware of the recording, more importantly, the Illinois Eavesdropping Act prohibits recording private conversations unless all parties consent to it. The NLRB scrutinizes employer policies that restrict employees from recording workplace conversations because it considers the recording of conversations to be a form of protected activity.
Recently, consistent with a long line of precedent, an NLRB Administrative Law Judge concluded in AT&T Mobility that the employer’s workplace rule that prohibited employees from recording conversations was overly broad. The workplace rule provided, in pertinent part, that “Employees may not record telephone or other conversations they have with their coworkers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.” The ALJ found that this rule interfered with employees’ Section 7 and Section 8 rights under the NLRA, when it was used as a basis to delete a recording of a disciplinary meeting recorded by a witness employee. Although AT&T argued that the policy was aimed at protecting the privacy of the customer, the administrative law judge found that the policy, when balanced against employees’ rights to engage in protected and concerted activity, was over broad and there were narrower ways for the employer to protect its legitimate interests without interfering with these employee rights. AT&T was ordered to rescind the rule and refrain from any action that would limit the exercise of employees’ Section 7 rights.
Similarly, there is ongoing litigation involving a Mercedes-Benz workplace rule prohibiting the use of cameras and video recording devices in its vehicle manufacturing plant without obtaining prior authorization from a supervisor. The NLRB argued that the rule interfered with employees’ right to engage in union activity and protected concerted activity for their mutual aid or protection. That case was remanded to an administrative law judge so that Mercedes-Benz could have the opportunity to defend its rule against employees using cameras and video recording devices.
While these cases involving AT&T and Mercedes-Benz are from the private sector, they serve as important guidance for Illinois public sector employers as well because the ILRB, when confronted with unique issues or cases of first impression, often follows NLRB precedent. Moreover, the ILRB so far has not been confronted with an issue concerning an employer’s policy prohibiting employees from record conversations. That is why these NLRB decisions are important for public sector employers to be mindful of not only to avoid an unfair labor practice, but also in designing workplace policies.
These cases further illustrate that policies that provide blanket prohibitions on the recording of conversations in the workplace are likely to be too broad and subject to scrutiny. Policies that prohibit recording conversations but include exceptions for concerted protected activities will likely sustain NLRB or ILRB scrutiny. And policies that restrict recording confidential information, work product, or information protected by state or federal privacy laws, will certainly withstand legal challenges. That does not mean, however, that there are no circumstances in which privacy will outweigh protected activity. Similar to the dicta in City of Chicago, CTA and several NLRB cases, audio or video recording in areas traditionally recognized as private, i.e. locker rooms, changing areas, restrooms, etc., are off limits. To that end, a policy that prohibits audio or video recording will certainly be upheld. Notwithstanding, Illinois employers should also be mindful of the Illinois Eavesdropping Act when drafting policies respective to recording conversations. Employers also should consider whether their anti-recording policies are tied into specific workplace concerns rather than applying a blanket prohibition.
Please do not hesitate to contact us with any questions about workplace policies that prohibit audio and video recording or if you need any assistance drafting a workplace policy.