I was recently asked about whether or not an employee can record daily work activities. While it seems that the answer to such a question should be “no,” it's not that simple.
Employers can have policies that cover recording devices in the workplace. Such policies are not illegal per se. However, employers must be very careful in drafting those policies so as not to run afoul of the National Labor Relations Act and state labor laws.
In June of 2017, the Second U.S. Circuit Court of Appeals considered a case involving Whole Foods. In the Whole Foods case, the court held that Whole Foods could not maintain a policy that enforced a broad ban on recording devices in the workplace. The Whole Foods policy banned all recording devices unless management had given the employee prior approval for their use. The National Labor Relations Board reviewed the Whole Foods policy and found that it violated the National Labor Relations Act because employees might construe the policy as prohibiting protected activities under the Act such as recording unsafe working conditions or hazardous situations and documenting evidence of inconsistent and unfair application of employer rules.
This decision does not mean that employers cannot regulate the use of recording devices in the workplace where there are legitimate reasons for doing so. What employers have to do is narrowly tailor their policies to cover legitimate employer concerns such as invasion of privacy, sexual harassment and discrimination issues and distraction from the performance of safety sensitive functions and job duties generally. In addition, policies that have been found acceptable by the NLRB, and likely would be found acceptable under state laws such as the Illinois Public Labor Relations Act, also include language that provides an exception for recording protected activities.
To summarize, it is advisable for employers who have prohibitions against recording devices in the workplace to review their policies in light of the Whole Foods decision. Employers who do not have policies regarding the use of recording devices in the workplace should consider including such policies in their personnel manuals before issues arise. As always, if you need help drafting a policy which complies with the law or revising a current policy, do not hesitate to contact Ancel Glink.
