It is weVll-established that the NLRB has been aggressively litigating cases involving social media policies and employees terminated for making disparaging comments online. Recently, however, the NLRB has expanded its reach even further into employee handbooks and have staked out a clear position that blanket prohibition of employee picture taking is unlawful. For example, this week, an Administrative Law Judge for the NLRB found that The Boeing Company violated federal law by maintaining a policy which stated: “Use of these devices [i.e. cameras or cell phones] to capture images or video is prohibited without a valid business need and an approved Camera Permit that has been reviewed and approved by Security.” The full decision, The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 19-CA 090932, can be found here.
Boeing is a union employer, and the NLRB also found that Boeing, itself, engaged in unlawful videotaping of employees engaged in a walkout. That said, the logic of the NLRB’s position on restricting employee taping will apply equally in a union and non-union setting. In fact, the NLRB struck down a similar restriction on employee taping in a case last year against Hispanic supermarket chain Giant, who was in the midst of an organizing campaign at the time.
The takeaway from these cases is that the NLRB is going to expect a no-taping policy to provide an exception for employees taking pictures to further their right to organize or engage in collective action. For example, an employee recording a picket line or an unsafe working condition will likely be protected from discipline. As a practical matter, it is difficult to craft a policy which would satisfy the NLRB, but still have teeth and be enforceable. That said, if your organization is unionized, and your policies will be scrutinized by a union, you may not have a choice.
Many non-union employers, however, don’t really want to tell employees that it is okay to take pictures of the workplace if you want to make a complaint to an agency, or organize a union. Consider instead a short disclaimer explaining that the policy does not apply to “protected activity under the National Labor Relations Act.” This may or may not satisfy the NLRB, but it shows good faith and still leaves a meaningful policy intact. Also keep in mind that discipline in this area, much like cases involving social media, are subject to being scrutinized by the NLRB, so extreme caution should be exercised.