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Stuck in the Middle Again: Protected Workplace Recordings Must Coexist with Patient Privacy

Stuck in the Middle Again: Protected Workplace Recordings Must Coexist with Patient Privacy

Healthcare providers are highly sensitive to the risks introduced by recordings in the workplace—not the least of which are potential violations of federal and state laws regarding the privacy of their patients and residents.  We have often advised our healthcare clients to enact restrictions on recordings that could introduce unnecessary risk, but a National Labor Relations Board (NLRB) decision, recently upheld by the U.S. Court of Appeals for the Second Circuit, indicates that those same restrictions on recordings might, in and of themselves, introduce compliance risk.  In its decision, the NLRB had to determine whether no-recording policies maintained by employer Whole Foods were overly broad by prohibiting all recordings by Whole Foods employees without prior management approval.  The NLRB’s position seems clear: Policies reasonably read as prohibiting all employee workplace recordings violate the National Labor Relations Act.