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EMPLOYERS BEWARE: 5th Circuit Court of Appeals Finds Workplace Recording Policy is Unlawful

The Fifth Circuit Court of Appeals recently became the second federal appeals court to hold an employer's policy prohibiting photographing and recording in the workplace violates the National Labor Relations Act ("NLRA"). The Court held unlawful the employer's policy that prohibited all "photography and audio or video recording in the workplace" without prior permission from a manager, human resources, or the employer's legal department. (T-Mobile USA, Inc. v. National Labor Relations Board).1

Section 7 of the NLRA protects employees' rights to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."2 The Court concluded the broad prohibition of recording could be interpreted by a "reasonable employee" as "forbidding protected activity" under the NLRB.

Almost all employees carry smart phones with high quality technology for photographing and audio recording making it easy for employees to record workplace operations, documents, meetings, and other activities. Although the Fifth Circuit covers Texas, Louisiana, and Mississippi, and the earlier case3 in the Second Circuit covers New York, Connecticut and Vermont, employers in other states should beware of the trend to prohibit policies that broadly prohibit all photographing and recording in the workplace.

An employer who has a no-recording or photographing policy should carefully review it. If the policy bans "all" recording in the workplace, it is likely to be found overly broad and a violation of the NLRB. It would be wise to narrowly tailor the policy to prohibiting recording and photographing in areas or activities to protect the company's legitimate business interests, such as confidential and proprietary information.

Please contact Engelmeier & Umanah for any questions or assistance you need with drafting employee policies or any of your employment law needs.

1 No. 16-60284 (5th Cir. 2017).

2 29 U.S.C. § 157.

3 See Whole Foods Mkt. Grp., Inc. v. N.L.R.B., 2017 BL 183726, 2d Cir., 16-0002-ag, unpublished 6/1/17 (holding the employer's rules prohibiting recording of company meetings or conversations without a manager's approval in the workplace violated the NLRB).

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