For a variety of reasons, including confidentiality and protection of trade secrets, many employers maintain policies that prohibit or limit employees from making audio or visual recordings in the workplace. These policies were targeted by the National Labor Relations Board (NLRB) under the previous Administration, which found them unlawful under the employee and union-friendly standard established under the NLRB’s 2023 decision in Stericycle, Inc. (see our discussion of that decision here). That case did away with the previous test for employer policies under Boeing Co. and LA Specialty Produce Co. and substituted a test that essentially presumes that employer policies that limit employee activities in the workplace, such as workplace recording policies, have an unlawful “reasonable tendency to chill” employees in the exercise of protected rights, unless the employer can show that its policy serves a “legitimate and substantial business interest” that cannot be addressed through more “narrowly tailored” rules.
Given that employer workplace recording policies had been found unlawful in recent cases, it was somewhat surprising that an NLRB Administrative Law Judge (ALJ) recently issued a decision dismissing an unfair labor practice complaint after finding that an employer’s “Use of Recording Devices” policy does not violate Section 7 of the National Labor Relations Act (NLRA). This decision provides helpful insight to employers who may be looking to craft complaint workplace rules, and specifically recording policies, under the Board’s current Stericycle standard.
ALJ Jeffrey P. Gardner dismissed the unfair labor practice complaint on January 13, 2026, after finding that the NLRB’s General Counsel (GC) did not meet the GC’s initial burden to show that the language of the employer’s policy could have been reasonably interpreted by employees to prohibit them from engaging in activity protected by Section 7 of the NLRA, which includes employees’ right to engage in concerted activity for “mutual aid or protection.” The employer’s policy, which “seeks to encourage and foster spontaneous and honest dialogue, practical problem-solving, and direct and ethical dealings,” limits the use of recording devices in its facilities while employees are on work time and in work areas. The policy cites several business-related reasons for limiting recordings. These include eliminating the “chilling effect” on the free exchange of information created when a person is concerned someone is recording, protecting the company’s partners and customer proprietary information and trade secrets, and ensuring employees comply with relevant state laws concerning secret recordings. (Some states prohibit recording a conversation without the consent of all parties to the conversation, whereas other states only require one-party consent (which can be the person recording).)
Judge Gardner evaluated the employer’s policy under the two-step Stericycle standard. Under that standard, the GC must first establish that a challenged work rule has a “reasonable tendency to chill employees from exercising their Section 7 rights.” If the GC makes that showing, the employer may rebut the presumption that the rule is unlawful by “proving that the rule advances a legitimate and substantial business interest, and the employer is unable to advance the interest with a more narrowly tailored rule.”
In this case, Judge Gardner found that the GC did not meet their initial burden under step one of Stericycle. He explained that by summarily arguing “Respondent’s No Recording Devices policy is presumptively unlawful,” the GC did not establish the rule could be read by a reasonable employee to restrict protected activity under Section 7. Further, Judge Gardner differentiated the “No Recording Devices” policy from NLRB decisions that found broad and sweeping recording policies unlawful under the NLRA. Those unlawful policies were unlimited in time and location and subjected violators to discipline and discharge or involved situations where policies were applied to directly prevent employees from engaging in NLRA protected activity.
The judge also rejected the GC’s argument that the “No Recording Devices” policy did not contain language “carving out” exceptions for protected Section 7 activity, explaining that the absence of such carveout is not determinative; whether there is a carveout for NLRA protected activity or not, the GC must affirmatively show the language of the rule itself has a chilling effect. Here, the judge found that the GC did not do so.
Last, the judge explained how the “No Recording Devices” policy actually did “carve out” protected activity. First, Judge Gardner credited the employer’s assertion in its brief that “the [rule] does not apply to any recording activity that would be protected under the NLRA.” Further, the language of the rule was limited. The rule permitted the use of recording devices in non-work areas and during non-work time, did not ban outright employees from having recording devices while on employer property, and only asked individuals to consider and respect potential targets of recordings.
Although this decision is still subject to full NLRB review and could be reversed, it provides employers with insight into how they can create compliant workplace recording policies under the restrictive Stericycle standard, at least while it remains the controlling standard (see more on that here). We will continue to report on any updates and developments.
