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Workplace Recording Bans Appear to Be Loser for Employers

Another federal court of appeals has ruled that a broad ban on recordings in the workplace is a violation of the National Labor Relations Act.

T-Mobile’s employee handbook had rules that: encouraged employees to maintain a positive work environment; prohibited fighting and failing to treat others with respect; forbid access to electronic information by non-approved individuals; and lastly a rule that forbid all photography and audio/video recording without prior permission from management. When ruling on a challenge to all four of these rules, the National Labor Relations Board decided that all of them had a chilling impact on employees’ rights under Section 7 of the NLRA. Section 7 secures the rights of employees to engage in concerted activity relevant to the terms and conditions of their employment.

The Fifth Circuit Court of Appeals held that only the ban on workplace recordings violated the NLRA. A similar conclusion on a ban was previously reached by the Second Circuit Court of Appeals. The Fifth Circuit’s analysis was focused on whether an employee would reasonably believe that the recording ban prohibited him or her from activity protected by Section 7. A broad ban on all photography and video recording would cause a reasonable employee to believe protected activity was discouraged such as “an off-duty employee photographing a wage schedule on a corporate bulletin board.” T-Mobile's stated reasons for the ban "to prevent harassment, maintain individual privacy, encourage open communication, and protected confidential information” were insufficient to justify the ban on Section 7 activities. Certain circumstances would make recording or taking photos a protected activity.