NLRB Continues to Wage War on Handbooks, But Allows “Recording in the Workplace” Policy

A National Labor Relations Board administrative law judge (ALJ) recently found the overly broad language in T-Mobile USA Inc.’s employee handbook violated federal labor law. The ALJ concluded that this language restricted, or could reasonably be interpreted to restrict, employees from discussing their terms and conditions of employment.

One section at issue stated, “This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.” The ALJ found that this statement was so broadly written that it “chilled” employees in exercising their rights under the National Labor Relations Act. Other policies deemed unlawful included policies that prevented the disclosure of employee contact information except for business purposes and provisions that broadly limited employees’ communications with the media but did not inform them they could speak to the media about issues related to their wages, hours, and working conditions.

Worth noting, a “Recording in the Workplace” rule that “prohibits employees from using photographic, audio, video, or any other recording devices in the workplace without authorization from a manager, the human resources department, or the legal department” survived the ALJ’s intense scrutiny. That policy provided valid, nondiscriminatory rationales for its implementation such as “concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions.” Companies can rest assured, at least for the time being, that employees do not have a right to make recordings in the workplace.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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