NLRB’S Roadmap for Tech & Comms

The NLRB has banned employer rules that “unqualifiedly prohibit all workplace recording.”  This opinion explicitly makes the NLRB’s position on workplace recordings consistent with its hostility to policies that purport to limit employee’s use of social media (something I suggested in 2014 would happen).

Employers are, essentially, on notice that any policy that touches on any technology that may be used in conjunction with communications channels (such as social media) will be viewed in light of employees Section 7 rights.


Not to predict what will emerge from CES this year, but from always-on recording devices, to geolocating fitness devices that connect to social media to employee use of drones: wherever and however tech converges with communications, the NLRB will be taking notice

The new position was set out on December 24, 2015 in Whole Foods Market, Inc. [.pdf], 363 NLRB No. 87 (12/24/15) in which the Board held:

Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present

Such an interest may, for instance, include an employer-hospital’s banning recording in light of “weighty patient privacy interests and the employer’s well-understood HIPAA obligation



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