When the Law “Dislikes” Anti-Recording and Social Media Policies

As technology advances and becomes more accessible, employers are becoming more concerned with their employees’ use of electronic devices in the workplace and employees’ social media use, both in and out of the workplace. This is not surprising since the use of technology and social media can implicate a wide range of legal issues such as privacy laws, content ownership, intellectual property infringement, workplace harassment and discrimination, and insider trading.

Because banks are entrusted with their customers’ assets and confidential information, social media use by employees is of particular concern in the banking industry. Accordingly, like other employers, many banks and financial institutions have policies in place regarding social media use and recording in the workplace (through photography, recording, videotaping, etc.). While these policies can be incredibly important and valuable, they must be carefully crafted in accordance with applicable laws to avoid potential liability for the employer.

Recording in the Workplace1

Although there has always been a risk that employees may use recording devices in the workplace, the likelihood has increased exponentially now that most employees carry a cell phone with recording and sharing capabilities. This easy access to recording devices has prompted many employers to adopt rules restricting employees from recording workplace meetings, conversations, phone calls, images, workplace conditions, etc. These policies vary: some prohibit employees from recording without prior employer approval, some prohibit employees from recording under any circumstance, some prohibit employees from specific types of recording, etc.

Anti-recording policies have been addressed by the National Labor Relations Board (NLRB)2 a number of times in recent years. While policies may seem reasonable, the NLRB has routinely held that such anti-recording policies are unlawful under Section 7 of the National Labor Relations Act (NLRA).3 Section 7 of the NLRA grants employees protections and sets forth a number of employee rights, “Such protected conduct may include, by example, employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous workplace conditions, documenting and publicizing discussions about terms and conditions of employment or documenting inconsistent application of employer rules,”4 or “recording evidence to preserve it for use in administrative or judicial forums in employment-related actions.”5

Accordingly, the NLRB has held that policies requiring an employee to obtain employer permission before making any recording are unlawful under the NLRA. Essentially, anytime a policy could be construed to prevent an employee from engaging in activity protected under Section 7 of the NLRA, the policy will be deemed unlawful by the NLRB, even where the policies state that they are intended to promote open communication. Though anti-recording policies are not automatically unlawful, they are heavily disfavored. Therefore, anti-recording policies should not in any way restrict or prohibit employees from exercising their protected rights. Further, anti-recording policies should specifically state that the policy is intended for a legitimate company purpose (such as confidentiality) and that the policy is in no way intended to prevent employees from exercising their Section 7 rights.

Social Media Policies

Anti-recording policies and social media policies often go hand-in-hand, in large part because recorded information is so commonly posted on social media. Though social media policies can be deemed unlawful if not properly crafted, social media policies tend to be much more enforceable than anti-recording policies. However, social media policies can bring on their own issues.

While it is important for employers to educate employees on good social media practices and to establish clear and concise social media standards and policies for interacting on social media, employers must at the same time be cautious not to infringe upon their employees’ rights to freely discuss protected topics.

Have a Plan

Employers should adopt a plan regarding how to manage social media use in the workplace. Failure to adopt such a plan could prove extremely detrimental. For example, employers can be held vicariously liable arising out of certain types of their employees’ social media use, such as defamatory, discriminatory, or harassing posts. These risks exist regardless of how and when an employee’s post is made. Additionally, in industries in which employees are exposed to sensitive company or customer information and/or intellectual property and trade secrets, the risk of disclosure can be significant with through social media usage.

Monitoring Employees’ Internet Usage

Generally, as long as employees are informed that their usage will be monitored, employers have the right to monitor their employees’ internet use during work hours, particularly on employer-owned devices. This is particularly important for employers involved in industries in which secure, confidential, and sensitive information is regularly exchanged. Employers in such industries often monitor their employees’ use of employer-provided devices and sometimes even restrict access to certain sites or material. This practice is permissible pursuant to the Electronic Communications Privacy Act, which provides that employer-provided devices are the property of the employer and accordingly, the employer can control how the devices are used. These policies and practices have routinely been upheld by courts, particularly where employers have written policies regarding their right to restrict and monitor their employees’ use of employer-owned devices.

Crafting a Social Media Policy

Social media policies should be narrowly crafted to limit exposure to potential liability and should clearly explain to employees how to best represent the employer online. Social media policies should inform employees of the employer information that employees may and may not share. The best social media policies contain a mix of social media objectives, values, guidelines, best practices, rules on what is considered appropriate and inappropriate use of social media, and the employer’s disciplinary procedures for violations of the policy. Additionally, policies should include provisions regarding professional and personal use of social media and appropriate language and content. A properly crafted policy can help avoid potential issues and liability and can further avoid serious public relations issues that can result when an employee’s inappropriate or offensive social media activity goes “viral.”

Protected Activities

It is extremely important that a social media policy informs employees that they are free to discuss protected topics, as previously discussed, such as wages and working conditions. Section 7 of NLRA generally protects two or more employees who act together online to improve the terms and conditions of their employment. Employees have a protected right to join together and to seek help from third parties on social media regarding working conditions. An employer violates Section 8(a)(1) of the NLRA if it interferes, restrains, or coerces employees in the exercise of their rights Section 7 rights. The NLRB has stated that an employer unlawfully interferes with an employee’s Section 7 rights by disciplining or terminating an employee for engaging in protected activities, or terminating an employee to prevent future discussions with other employees regarding the terms and conditions of their employment.

A social media policy, or a provision or rule within the policy, violates the NLRA when it precludes an employee from engaging in protected activities. For example, a policy that discourages employees from discussing terms of their employment. It is equally important that an employer continues to comply with the NLRA. Recently, the NLRB has repeatedly scrutinized employer social media policies and employer disciplinary actions for employee social media use. This has resulted in numerous NLRB memoranda regarding social media policies in the employment context. Because this NLRB attention will likely continue as social media becomes more and more ingrained in our culture, it is important that employers regularly review their social media policies to ensure compliance with current NLRB interpretations of the NLRA in the context of social media usage.

Takeaways

While social media policies and anti-recording policies are not patently unenforceable, they should always be carefully crafted and employers should consider the following

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[1] For purposes of this article, “recording” means recording in the workplace, i.e., meetings, working conditions, etc. and does not include recording telephone calls.

[2] While NLRB opinions are not legally binding precedent that banks and financial institutions must adhere to, they are considered persuasive authority by courts and other administrative agencies.

[3]The NLRA provides private sector employees the right to engage in “concerted activity,” whether or not they are in a union.  “Concerted activity” under the NLRA means two or more employees taking action for their mutual aid or protection regarding terms and conditions of employees.  A “concerted effort” can also be undertaken by an individual if he or she is acting on behalf of other employees bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.   

[4]Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 362 NLRB No. 190, at 13 (2015).

[5] Michigan Bell Telephone Co., 2017 NLRB LEXIS No. 497, at 41 (2017).  The NLRB’s position regarding anti-recording policies was upheld by the Second Circuit in an unpublished 2017 opinion.  See Whole Foods Mkt. Grp., Inc. v. NLRB, 691 Fed. App’x 49 (2d Cir. 2017).


Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.

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