May 18 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
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)