Policies that prohibit recording or taking pictures or video recordings in the workplace are still pretty common in handbooks. Employers may have valid reasons for implementing these policies, such as preventing the capture of confidential or proprietary business information.

Today’s smart phones with professional grade audio and video capabilities make surreptitious recordings by employees easy to do.

Holly Williamson and J. Marshal Horton of Hunton Andrews Kurth note in their article Employers Beware: Blanket Policies Prohibiting Workplace Recordings May Violate the NLRA that broad bans on workplace recordings can violate the National Labor Relations Act (NLRA). The National Labor Relations Board and some courts have ruled that recording certain types of information such as unsafe working conditions, evidence of discrimination, anti-union meetings, and discussions about terms and conditions of employment is protected under the NLRA.

If the recording in the workplace involves arguably “protected concerted activity” and the employees doing the recording can show they are “acting in concert for their mutual aid and protection,” the employees can be protected from employer discipline unless the employer can show an “overriding interest” in the restriction of the recordings. This is not just in unionized companies; the NLRA covers non-union employers too.

An employer “no recording” policy such as the one above could violate Section 8 (a)(1) of the NLRA.

Because this is federal law, it would also supersede any state laws that may require two-party consent for recording conversations. So, state law would not help an employer in this case.

The authors rightly point out that today nearly every employee in every workplace has an audio and video recording device on their person in the form of their cell phone. Employers are encouraged to review their policies to make sure they state the reasons for implementing the policy and also include a disclaimer that states the right of employees to engage in protected concerted activity.

ASE Connect

Learn more about compliant handbook policies in ASE’s Designing and Updating Employee Handbooks class.

Source: Lexology. Hunton Employment and Labor Perspectives. Employers Beware: Blanket Policies Prohibiting Workplace Recordings May Violate the NLRA. (5/8/2025)