For a variety of reasons, including confidentiality and protection of trade secrets, many employers maintain policies that prohibit or limit employees from making audio or visual recordings in the workplace. These policies were targeted by the National Labor Relations Board (NLRB) under the previous Administration, which found them unlawful under the employee and union-friendly standard established under the NLRB’s 2023 decision in Stericycle, Inc. (see our discussion of that decision here). That case did away with the previous test for employer policies under Boeing Co. and LA Specialty Produce Co. and substituted a test that essentially presumes that employer policies that limit employee activities in the workplace, such as workplace recording policies, have an unlawful “reasonable tendency to chill” employees in the exercise of protected rights, unless the employer can show that its policy serves a “legitimate and substantial business interest” that cannot be addressed through more “narrowly tailored” rules.
Given that employer workplace recording policies had been found unlawful in recent cases, it was somewhat surprising that an NLRB Administrative Law Judge (ALJ) recently issued a decision dismissing an unfair labor practice complaint after finding that an employer’s “Use of Recording Devices” policy does not violate Section 7 of the National Labor Relations Act (NLRA). This decision provides helpful insight to employers who may be looking to craft complaint...
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