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How To Protect Your Workplace From Smartphone Cameras

Thanks to the proliferation of Smartphones, more and more people have high-definition cameras and video cameras in their pockets.  These are great for capturing the everyday moments of life – grandkids, birthdays, selfies with celebrities.  In seconds, you can take a photo and share it with friends and family around the world.
But the prevalence of these small cameras can be a worry for employers.  A careless or disgruntled employee can take pictures of a company’s intellectual property, which includes everything from Ford’s manufacturing process to Google’s GoogleGlass prototype to Coke’s secret recipe, and share it with competitors.  The damage that these phones can cause goes way beyond their hundred dollar or so value.
To proactively combat this threat, some employers have implemented bans on taking pictures or videos in the workplace.  For the most part, these bans are permissible.  However, employers should be aware of a recent decision by a National Labor Relations Board Administrative Law Judge (“ALJ”) regarding these policies.
On May 15th, an ALJ determined that Boeing’s ban on employees capturing images or video, without a valid business need and written approval from Boeing’s security department, violated the National Labor Relations Act (“NLRA”).  Although Boeing argued that it needed to protect the secrecy of its manufacturing process, the ALJ rejected this claim since Boeing allowed visitors to take photos of their facility.  In rejecting this argument, the ALJ also found that the policy had a chilling effect on employees exercising their rights under the NLRA, such as being able to document union strikes.
The ALJ, however, did provide one recommendation to Boeing.  It noted that the company could have avoided this violation by including a caveat that its rule did not apply to conduct protected by the NLRA.  While this was the only recommendation on how to legally craft one of these policies, there is no doubt that there will be additional commentary from the National Labor Relations Board and its ALJs as more of these policies are challenged. 
If you have implemented or are thinking about implementing a policy to address the prevalence of Smartphones in your workplace, contact a member of our Emerging Technologies Practice Group to make sure you aren’t violating the National Labor Relations Act or any other laws.