Fifth Circuit Rejects Prohibition on Recordings

Originally published by Thomas J. Crane.

T-Mobile has work rules including: 1) Maintain a positive work environment, 2) No arguing or fighting; respect co-workers, 3) no photography, or video or audio recording, and 4) no access to electronic information by non-approved persons. The National Labor Relations Board found these four rules to violate the National Labor Relations Act. The NLRA allows persons to organize a union. Precursors to organizing activity includes simple discussions between employees. So, rules that hinder employees communicating with each other are sometimes viewed as anti-union. The Fifth Circuit disagreed with the NLRB. It found that only the third rule about violated the NLRA. Applying a test that asks would this rule hinder the efforts of a “reasonable employee” to organize, the court found the rule regarding recording would chill organizing activity.

The court found that the very broadly stated rule would be interpreted by a reasonable employee to prohibit even mundane organizing activities such a photographing a wage schedule posted on a company bulletin board. T-Mobile defended the rule, saying it would protect the privacy of workers. But, said the court, the good intentions of a rule do not remove its harmful effects. The court did note in a foot note that certain photographs or recordings might not relate to organizing activity. But, as the rule is stated, the rule against all recording and photography would apply to activity which would clearly involve organizing activity.. See the decision in T-Mobile v. NLRB, No. 16-60497 *5th Cir. 7/25/2017) here.

So, in essence, the court might approve a rule that was more carefully worded. But, crafting a rule that protects privacy without involving possible forms of organizing activity would be very challenging. The court did not say it, but I think the judges must have wondered why not just have a rule that explicitly protects privacy? Why go though the mental gymnastics of a rule that tries to restrict photographs and recordings but dos not restrict forming a union? It sounds like the employer was possibly trying to squeeze in some anti-employee communication rules under the guise of protecting privacy of workers. After all, we all know employers would never try to hide harmful effects behind good intentions…..

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