Caesars Entertainment dba Rio All-Suites Hotel and Casino, 362 NLRB slip op. 190 (Aug. 27, 2015).
The NLRB has extended Section 7 to limit the ability of employers to ban the use of cameras (including those on phones) in the workplace.
Section 7 of the National Labor Relations Act (NLRA) gives employees the right to form, join, support, or assist unions to bargain collectively with their employer about wages, hours, and other working conditions. An employer violates the NLRA "if it maintains workplace rules that would reasonably tend to chill employees in the exercise of their Section 7 rights." Importantly, NLRA decisions and Section 7 rights apply to both union and non-union employers and employees.
This matter involved the well-known Las Vegas casino and hotel, the Rio Hotel and Casino. The Rio has approximately 3,000 employees, half of whom are represented by a union. The pertinent policy in the Rio's 84-page handbook stated: "Cameras, any type of audio visual recording equipment and/or recording devices may not be used unless specifically authorized for business purposes (e.g. events)."
The Board found the Rio's ban of cameras and recording devices "unlawfully overbroad[,]" holding, "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." That is, employees would understand that the rule prevents them from photographing or videotaping their working conditions at the Rio, and the Company offered no recognized justification for having such a broad rule. In explaining its conclusion, the Board emphasized that the prohibition was not tied to any "particularized interest, such as the privacy of its patrons." With reference to an earlier decision, the NLRB distinguished the "weighty" privacy concerns of a medical center's rule that prohibited "[t]he use of cameras for recording images of patients and/or hospital patients and/or hospital equipment, property, or facilities." See Flagstaff Medical Center, 357 NLRB No. 65. "Unlike the rule in Flagstaff," the NLRB said, the Rio's policies "include no indication that they are designed to protect privacy or other legitimate interests."
In light of the NLRB's decision, employers must be careful when prohibiting the use of cameras or other recording devices. Employers can avoid the problem presented here, while still limiting the use of such equipment, by writing policies that: (1) expressly exempt the use of photographs or recordings of workplace conditions and/or in connection with discussions of workplace issues, or (2) expressly limit the ban to situations involving legitimate company interests and personal privacy rights. For most companies, the former approach will be easier to implement, and avoids grey areas such as determining which company and privacy interests are "legitimate."
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