An employer cannot ban all audio and video recording in the workplace, a federal appeals court recently decided.
The Case: T-Mobile's Employee Handbook
In the case in question, cellular giant T-Mobile included several controversial rules in its employee handbook, including a rule encouraging a “positive work environment,” a rule prohibiting arguing and failing to demonstrate “teamwork,” and a rule prohibiting all photography and audio/video recording without prior permission from management, HR or legal.
A communication workers’ union challenged these rules before the National Labor Relations Board, arguing that they violated federal labor laws by unreasonably stopping workers from engaging in “protected concerted activity.” In other words, the union claimed the rules would prevent employees from engaging in the right to organize and take collective action over wages and working conditions that they might find unfair.
The Ruling and T-Mobile's Appeal
The NLRB agreed with the union, finding all the rules were illegal. T-Mobile appealed to the Fifth Circuit, which agreed with the employer that rules demanding teamwork and a positive work environment were OK as “common sense civility guidelines.” But it agreed with the NLRB that the audio/video rule violated labor laws.
Since the rule banned all audio and video recording, the court said, it would unreasonably discourage protected activity, such as an off-duty employee taking a photo of a wage schedule on a corporate bulletin board.
This ruling doesn’t mean that all rules restricting audio or video recording in the workplace are unlawful. But it’s a reminder that if you do want to limit recording and you have legitimate reasons for doing so, you should talk to an employment lawyer about crafting a policy that won’t violate the law.