TikTok on the Clock

Workplace videos on the rise. What’s an employer to do?

According to Fortune, disengaged Gen Z workers increasingly fill their time (and supplement their income) with workplace videos for their social media. Whether to pass the time or to gain influencer status, employees turn their phones to camera mode for day-in-the-life snapshots of corporate America. Beyond productivity concerns, workplace recordings (and rules against them) raise a host of thorny issues.

Permission Requested?

If a recording captures co-workers, privacy and consent rules come into play. Employers have a legitimate interest in preventing one worker from invading the privacy of another. (Candid cameras in the restroom are a no-no.) State laws also set rules for whether a conversation can be recorded without all participants’ consent, and third-party interception of a conversation is illegal everywhere. The law in Michigan is a bit muddy, but it currently permits a participant to record secretly any conversation he or she is involved in. Other states restrict recordings without the consent of all involved.

You posted our secret sauce?

Most companies have intellectual property or data they work hard to keep secret. A Tiktok video that spills the secret sauce is clearly problematic for the employer and the employee alike. Broadcasting the company’s customers or suppliers will also cause problems.

So, ban recordings, right?

For an employer, a blanket ban on workplace recordings may look tempting. But it’s likely illegal under existing National Labor Relations Board (NLRB) precedent. Specifically, these decisions protect worker recordings made while “acting in concert for their mutual aid and protection” including:

• Evidence of unlawful conduct such as harassment or discrimination;
• Discussions about terms and conditions of employment;
• Documentation of unsafe workplace conditions.

The NLRB has gone so far as to hold that secret recordings that would otherwise violate a state’s all party consent rules may not be restricted or penalized.

Tailored Policies are best.

Employers seeking to limit surreptitious audio and video recordings should develop carefully tailored policies that:

• Set forth the specific needs of the company and of coworkers that make the restriction necessary;
• Create exceptions for recordings that document concerted activity for workers’ mutual aid and protection; and
• Specifically maintain workers’ right to organize under the National Labor Relations Act.

If violations occur, it may be wise to consult legal counsel before imposing discipline. A sophomoric video spoofing office rules, for example, could be construed as protected speech by the NLRB.

Want to make sure your team’s on the same page? We’re happy to help you craft a policy that works. Contact us today at 248.477.6300.