Can employers legally stop their workers from taking selfies?

A federal appeals court ruled recently that an employer could not maintain a rule prohibiting audio or video recording in the workplace, becoming the second such court to determine that such a policy violates federal law. The July 25 decision, issued by the Fifth Circuit Court of Appeals, was premised on the rationale that such a rule could discourage unionizing or other protected activity. This case is yet another reminder that employers need to tread carefully when it comes to personnel policies restricting audio and video recording.

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T-Mobile's policies come under NLRB scrutiny

The case begins with a review of T-Mobile's employee handbook. Like many such handbooks, it contained four workplace rules that are not necessarily uncommon in today's modern workplace: 1, a rule encouraging employees to "maintain a positive work environment;" 2, a rule prohibiting arguing or fighting, failing to treat others with respect, or failing to demonstrate teamwork; 3, a rule prohibiting access to electronic information by non-approved individuals; and 4, a rule prohibiting all photography and audio/video recording in the workplace without prior permission from management, human resources or the legal department.

These policies did not sit well, however, with the Communications Workers of America, and the union filed a complaint with the National Labor Relations Board asking for them to be struck down. The NLRB granted the union's wish, ruling that all four policies violated the National Labor Relations Act (NLRA).

In the NLRB's view, these policies had a chilling effect on employees who may want to exercise their rights to engage in protected, concerted activity with regard to the terms and conditions of employment (also known as "Section 7 rights"). These rights apply to all workplaces across the country, whether unionized or not. The employer disagreed with the NLRB's conclusion and filed an appeal with the Fifth Circuit Court of Appeals.

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Appeals court: recording ban must be rescinded

The appeal generated some good news for the employer. The Fifth Circuit, widely regarded as one of the most employer-friendly appeals courts, disagreed with the NLRB and found that the first three policies were lawful. But there was also some very bad news: the court agreed with the NLRB and decided that the employer's complete ban on photography and recording violated the NLRA. This followed Court of Appeals for the Second Circuit reaching the same conclusion in June as to a similar ban on recording in the workplace.

The Fifth Circuit, to reach its conclusion, applied the framework set out in a 2004 decision called the Lutheran Heritage case. The court's focus was on whether a reasonable T-Mobile employee would reasonably construe the language of the recording rule to prohibit Section 7 activity. The Fifth Circuit explained the "reasonable employee" for purposes of its inquiry as "a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA."

Applying the Lutheran Heritage test to the first three rules, which the court characterized as "common sense civility guidelines," the court held that a reasonable employee would not construe them to restrict Section 7 activity. Here, the court emphasized the importance of both context when interpreting the rules and the necessity to give such rules a reasonable reading. The question, the court instructed, is not how the reasonable employee could interpret these policies, but rather how the reasonable employee would interpret them.

The recording ban, on the other hand, troubled the court because of its sheer breadth. Citing the Second Circuit's June 2017 decision, the Fifth Circuit agreed with the NLRB that a reasonable employee would interpret the ban which by its plain language encompasses any and all photography and recording without permission as discouraging protected activity, such as "an off-duty employee photographing a wage schedule on a corporate bulletin board."

The court rejected T-Mobile's argument that the recording rule's stated purposes "to prevent harassment, maintain individual privacy, encourage open communication and protect confidential information" justified the ban. These recitations were not enough to overcome the broad prohibition of protected activity, "including Section 7 activity wholly unrelated to those stated interests." The court declined to decide whether a right to photograph and record the workplace exists under the NLRA, noting that "there are circumstances in which taking photographs or recordings may be protected activity (such as the example of photographing a wage schedule), and . T-Mobile has not provided any legitimate reason why its ban ought to be allowed to encompass such activity."

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So, what should employers do?

With two federal appeals courts within a few months of each other reaching the same conclusion about the legality of broad workplace recording bans, it certainly appears that employers' ability to control workplace recordings is in doubt. Even if a company does not operate in any of the states covered by the Fifth Circuit (Texas, Louisiana and Mississippi) or Second Circuit (New York, Connecticut and Vermont), pay particular attention to this trend. It would not be surprising if other circuit courts, especially ones out here on the more liberal West Coast, followed their lead sooner rather than later. But the larger question remains: Should employers scrap their anti-recording policies altogether?

Given the fact that most employees bring mobile devices capable of audio and video recording to work on a daily basis, and given the additional fact that disgruntled workers commonly surreptitiously record meetings, discussions and events, solid arguments can be made for keeping or implementing policies that limit recording in the workplace.

But this decision is a reminder or, for some, a wake-up call to carefully craft such rules to maximize their enforceability. Ensure that policies walk the fine line between legitimate workplace rule and illegal workplace practices, which is not always the easiest line to draw.

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Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter @pdxLaborLawyer.

Published: Mon, Sep 18, 2017