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T-Mobile USA, Incorporated v. NLRB, No. 16-60284 (5th Cir. July 25, 2017)

The Fifth Circuit enforces a National Labor Relations Board ("NLRB") order striking down an employer's policy that banned the use of "cameras, camera phones/devices, or recording devices (audio or video) in the workplace."

T-Mobile USA, Incorporated v. NLRB, No. 16-60284 (5th Cir. July 25, 2017): During the last Administration, the NLRB actively reviewed and struck down many workplace policies deemed to interfere with "concerted activities" protected by Section 7 of the National Labor Relations Act. Courts have not always enforced the Board's orders in this regard, but here (on cross-petitions from the NLRB) the Fifth Circuit agrees that the employer's anti-recording policy trampled on protected Section 7 rights.

The NLRB actually found that 15 separate personnel rules at T-Mobile violated employees' rights under Sections 7 and 8(a)(1) to take concerted action to improve work conditions. T-Mobile acquiesced to eleven of these, and elected to appeal just four. These were provisions in the employee handbook that "(1) encouraged employees to 'maintain a positive work environment'; (2) prohibited '[a]rguing or fighting,' 'failing to treat others with respect,' and 'failing to demonstrate appropriate teamwork'; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals."

The Fifth Circuit rules in favor of T-Mobile on three of these (1, 2, and 4), finding that no employee could reasonably believe that such general workplace security and deportment rules interfered with protected activity. It even cites, as authority, a YouTube video of the late-night comic Stephen Colbert mocking the Board's order, joking that "the government says I can't legally ask [my employees] to be happy."

Yet it enforces the NLRB order on the recording ban. T-Mobile issued the following rule:

"To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [T-Mobile] activity or with permission from an employee's Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants."

T-Mobile defended this rule as advancing "legitimate business interests" in a civil and secure workplace. But the fact that the policy would have lawful applications, holds the Fifth Circuit, did not rescue the policy from the chilling effect on employees' collective rights.

"The ban, by its plain language, encompasses any and all photography or recording on corporate premises at any time without permission from a supervisor. This ban is, by its own terms alone, stated so broadly that a reasonable employee, generally aware of employee rights, would interpret it to discourage protected concerted activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board."

Finally, while there have been mixed signals in board decisions about how far a recording ban may reach, "[w]e need not decide whether and to what extent such a right exists; we are satisfied that, as in the example provided above, there are circumstances in which taking photographs or recordings may be protected activity, and that T-Mobile has not provided any legitimate reason why its ban ought to be allowed to encompass such activity."

(Employees are forewarned that some states make the secret, unconsented audio recording of conversations illegal-subject to criminal prosecution-and it is recommended that they seek legal advice from their jurisdiction before gathering such evidence.)

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