How to Balance the Need for Surveillance Against Protected Activity?

We see it all the time on the news, on our social media websites, and in everyday life: video footage from someone’s cell phone capturing a moment, whether it’s a viral sensation or a mundane video of a cat napping. And sure enough, cellphone recordings happen in the workplace, too. Sometimes cellphone usage is acceptable in the workplace—and even encouraged to capture work performance or safety issues—while other times work policies prohibit their use during working time. Either way, we live in a culture in which you can guarantee that someone has a cellphone at his disposal and is ready to record, even while on the job.

recordWhile we live in a time when the assumption is that someone is always watching, how do we advise our supervisors to handle situations in which it may be necessary to record events at work (such as those involving legitimate safety concerns) while balancing the need to be cautious against engaging in surveillance of employees’ protected activity? The National Labor Relations Board (NLRB) recently affirmed an administrative law judge’s (ALJ) decision that considered this very issue: whether a company’s safety director’s cell phone recording and photographs of employee activity at a construction site violated the National Labor Relations Act (NLRA).


A building construction and project management company oversaw the construction of a new hotel in downtown Louisville, Kentucky. The company hired subcontractors to complete work at the jobsite. During construction, some employees believed they were being underpaid for their work on the project. After employees raised their concerns with the subcontractors, who told them they would have to talk to the project management company, over 100 employees stood outside the jobsite to picket.

The company’s safety director, who stood outside the jobsite every morning to ensure that those who entered were authorized to be on-site, observed picketers standing in traffic lanes and blocking the crosswalk and employee entrance. While the safety director asked people to move, the behavior continued, and he believed it created unsafe conditions for the jobsite. The safety director grabbed his cell phone and took pictures of picketers at the employee entrance.

The safety director also observed drivers (who he later learned were union agents) stop their trucks in the street and block traffic near the site. He videoed the trucks and then called the police to report that the trucks were blocking traffic. The police arrived and the trucks left, and the safety director subsequently deleted the cell phone videos and photos he took because the conduct ended and didn’t reoccur.

NLRB Upholds ALJ’s Decision

The NLRB will find that an employer unlawfully surveils employees’ protected activity if the activity is observed in a way that is “out of the ordinary” and is thereby coercive, such as when the observation occurs for a long period of time or the employer is engaged in other coercive conduct (e.g., by making threats or actual reprisals). Additionally, the NLRB finds that mere observation of open, public union activity near a jobsite doesn’t constitute unlawful surveillance. However, photographing and videotaping such activity is more than mere observation. The NLRB thus requires that employers engaged in photographing or videotaping employees’ protected activity demonstrate a legitimate justification for their action, such as when picketers are trespassing, obstructing traffic, and/or blocking ingress or egress to an employer’s facility.

In this case, the ALJ considered whether the safety director’s actions of recording and photographing the employee activity at the construction site constituted unlawful surveillance. The ALJ found that his presence at the employee entrance wasn’t out of the ordinary from his everyday practice and that it wasn’t unusual for him to use his phone to take photos or videos of what he perceived to be actual or potential safety risks.

Moreover, the ALJ determined that the safety director had a legitimate justification for photographing the picketers who were blocking employees from safely accessing the jobsite and for videoing the union agents’ trucks that blocked traffic as it was occurring. The ALJ further noted that the safety director’s actions weren’t coupled with other coercive conduct, such as making threats to the picketers. Brasfield and Gorrie, LLC, Case 09-CA-199567 (May 8, 2018).

Bottom Line

While circumstances such as in Brasfield and Gorrie, LLC, are fact-sensitive to the case, the takeaway lesson is that sometimes in the heat of the moment, people will just react to a given situation, and that reaction will be to capture an event with their cellphones. Although the NLRB recently came out in favor of the safety director’s actions, cases involving allegations of surveillance are reviewed on a case-by-case basis. Therefore, it’s important to regularly train supervisors and managers about what types of employee activities are considered protected and what supervisor behaviors may constitute surveillance under the eyes of federal labor law.

While our inclination in living in today’s society is to grab our cellphones and start recording, it’s prudent to remind supervisors that the NLRB generally considers photographing and videoing to be more than just mere observation of open employee protected activity. Therefore, it’s important for supervisors and managers to take a step back and consider the implications of their actions and whether there is a legitimate justification—such as a safety concern on the jobsite—for capturing the moment.

If you have questions about this issue or any other employment concern, contact the author at or any of Faegre Baker Daniels’ labor and employment attorneys.

The post How to Balance the Need for Surveillance Against Protected Activity? appeared first on HR Daily Advisor.

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