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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Thursday, November 6, 2014

Do employees have recording rights in the workplace under the NLRA?

Law360 published an article last week with the title "Employees Should Not Have Recording Rights Under NLRA" by L. Brent Garrett, a partner with Fisher & Phillips LLP. It raises an interesting question: Does the National Labor Relations Act give you the right to make audio or video recordings in your workplace? I would caution employees regarding making such recordings, as there may be state law that criminalizes such recordings without consent from all parties. In addition, some employers have rules prohibiting such recordings, and doing so may be cause for discipline or termination.


That being said, the National Labor Relations Act gives workers the right to be free from employer punishment for discussing "wages, hours and working conditions." In addition, the National Labor Relations Board (NLRB) has interpreted this to mean that there is a broad right under federal labor law to discuss these on social media. But does this apply to recordings used or intended to be used for discussion with other employees, including on social media?

The NLRB hasn't yet addressed this issue, but clearly it is ripe for review. Thus, if an employee is disciplined or fired for making a recording on the premises, it seems that it might be a good idea to make a complaint to the NLRB.

The article points out that confidentiality concerns, as in a hospital setting, appear to trump recording rights. However, it also cited a number of administrative decisions, some allowing such recordings, and one permitting a rule against recording. Thus, if this becomes an issue, one should keep in mind the possibility of an NLRB complaint.

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