A Proper Workplace-Recording Policy Can Be a Powerful Tool for Employers

February 26, 2020

In recent years, secret recordings have had a big influence in employment litigation. Employees have introduced these pieces of evidence to support claims of discrimination, harassment and retaliation in the workplace. But employers have means to combat this trend. According to courts within the Fifth Circuit’s geographic footprint, employers may enact and carry out policies to prevent certain workplace recordings, provided these policies are properly tailored, sufficiently published and consistently applied.

District courts approve workplace-recording policies that are specific to a certain set of circumstances. In cases in Louisiana and Texas, courts have found that  an employee violating a proper workplace-recording policy may justify the entry of summary judgment in the employer’s favor.1 These courts tacitly approved express policies prohibiting employees from recording other employees without permission from a supervisor or the other employee. However, employers may not enact workplace-recording policies that are broad enough to forbid certain forms of clearly protected activity under the National Labor Relations Act. Even a broad workplace-recording policy designed to prevent harassment, maintain individual privacy and encourage open communication may violate the NLRA by chilling an employees’ exercise of available rights. Examples include policies that encompass all photography and recording on corporate premises at any time without permission from a supervisor.2

Beyond the breadth and scope of workplace recording policies, employers should take care to publish such policies and consistently apply them. Policies that are not clear or regularly enforced may not provide employers enough protection in the event of a workplace dispute.3 But, if properly defined, published and applied, a workplace-recording policy may be a valuable tool in managing personnel and the inevitable disputes that arise with that task.

[1] See Rome-Bienemy v. Children’s Hosp., No. 14-1020, 2015 U.S. Dist. LEXIS 166831, at *16 (E.D. La. Dec. 14, 2015) (tacitly approving an “express policy prohibiting employees from recording other employees without their ‘specific permission’”); Mohamad v. Dallas Cty. Cmty. Coll., No. 3:10-cv-1189-L-BF, 2012 U.S. Dist. LEXIS 141578, at *22-25 (S.D. Tex. Sept. 28, 2012) (tacitly approving an express policy prohibiting employees from recording conversations of other employees without “[w]ritten authorization from the supervisor of the employee who wishes to record the conversation”).

[2] See T-Mobile USA, Inc. v. NLRB, 865 F.3d 265, 270, 274-75 (5th Cir. 2017) (disproving of a workplace-recording policy that was so broad, it might discourage “even an off-duty employee [from] photographing a wage schedule posted on a corporate bulletin board”).

[3] See Davis v. Indep. Contract Drilling, Inc., No. 4:16-CV-00252, 2019 U.S. Dist. LEXIS 41651, at *19-21 (S.D. Tex. Mar. 14, 2019) (finding jury could infer that employer’s reliance on employee’s violation of policy prohibiting use of cell phones on drilling rig floor was merely pretext where evidence revealed that the policy was not commonly known or strictly enforced and the employee had never violated it before).