We believe that a blanket ban on employee use of recording devices could raise some risks of a potential labor law violation. We are aware of at least two federal courts that have found that the National Labor Relations Act protects employees from blanket bans on employees’ use of recording devices at work. However, we are not experts in employment laws, and we recommend discussing this question with a human resources attorney.

For resources related to our guidance, please see:

• Whole Foods Market Group, Inc. v. National Labor Relations Board, 691 Fed.Appx. 49 (2nd Cir. 2017) (“[[B][/B]B]ecause Whole Foods’ no-recording policies prohibited all recording without management approval, ‘employees would reasonably construe the language to prohibit’ recording protected by Section 7 [of the National Labor Relations Act]. See Rio All-Suites Hotel & Casino, 362 N.L.R.B. No. 190, slip op. at 2 (Aug. 27, 2015) (‘Employee photographing and videotaping is protected by Section 7 when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.’).”)

• T-Mobile USA, Inc. v. National Labor Relations Board, 865 F.3d 265, 274–275 (5th Cir. 2017) (“We are primarily concerned with the broad reach of the recording ban. 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. . . . Because a reasonable employee would construe the recording policy to prohibit forms of protected activity, we hold that the Board’s determination that the recording policy violated the NLRA is supported by a reasonable interpretation of the record. Its order will be enforced in that respect.”)