U.S. NLRB's Boeing decision puts focus on cameras in workplace

Reuters

By Amanda Becker

May 18 (Reuters) - A fight between Boeing Co and a U.S. labor regulator over cameras in the workplace could clarify how the government will adapt analog-era labor laws to the digital age, when workers have smart phones with cameras.

A National Labor Relations Board (NLRB) administrative law judge on Thursday found the aerospace company violated U.S. labor law by videotaping union marches at its facilities in 2012, while also barring employees from using personal cameras at work without a special permit.

Judge Gerald Etchingham ruled workers could interpret being videotaped, and not being allowed to take pictures themselves, as interfering with their right to organize and improve working conditions. Boeing views the decision as "an unjustified and unprecedented intrusion on our right to protect the security of our facilities and proprietary information," spokesman Tim Healy said in a statement.

He said Boeing will take "all necessary steps" to overturn it.

The five-member NLRB board in Washington, D.C., will either adopt Etchingham's ruling in full, revise or reject it, indicating how the board might approach employee camera use policies in the future.

The NLRB has already articulated specific circumstances in which employers may photograph or videotape employees without running afoul of labor law, experts told Reuters.

Employers may not single out union or organizing activity by videotaping or photographing it if non-organizing activities are not typically monitored in the same way, lawyers said.

To specifically record a union march - rather than say, monitor an entire factory by surveillance camera - employers must be able to show the NLRB that there was a reason to believe the event might result in violence, hazard or risk.

"You can't just do it on a hunch, it has to be based on something," said former NLRB Chair Wilma Liebman. "That area of law is well settled and not particularly in flux."

Fewer NLRB decisions, however, have dealt with whether employers can prohibit workplace photography across the board, or if they must develop circumstance-specific criteria to pass board muster, lawyers said.

More disputes will likely land before the NLRB as employers add photography policies to workplace handbooks as video and still camera-equipped smart phones become standard.

In one prior case, a long-term healthcare facility clerk was reprimanded for wearing a hat after a bad haircut. The clerk photographed other workers wearing hats to try to prove she had been singled out. The NLRB and the 4th U.S. Circuit Court of Appeal agreed her photography was protected by labor law.

In another case at a medical center, the board said a photography ban was appropriate to protect patient privacy. "You can see overwhelming employer justification under certain circumstances for this sort of policy," said Ballard Spahr attorney Steven Suflas.

Etchingham said there were not similar privacy concerns at Boeing, which permitted photography on facility tours and released video of production lines.

The NLRB's general counsel's office stated in a March 2012 memo that grocer Giant Food's rule prohibiting employees from taking photos or video "would reasonably be interpreted to prevent employees from using social media to communicate and share information" regarding their rights.

Liebman noted that "it takes awhile for the law to catch up with technology." She added: "What the board does is try to adapt the existing doctrine with changing technology." (Reporting by Amanda Becker; Editing by Kevin Drawbaugh)

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