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🗞️ UPS Recording Policy Survives NLRB Challenge Under Stericycle Standard

ALJ rules UPS workplace recording policy lawful under strict new Stericycle test, finding policy's work-time/work-area limits don't chill Section 7 rights. General Counsel failed to prove reasonable employees would interpret policy as restricting protected labor activities.

onthelaborfront

13 Jan 2026 — 4 min read

On January 13, 2026, NLRB Administrative Law Judge Jeffrey P. Gardner dismissed unfair labor practice charges against United Parcel Service's "Use of Recording Devices" policy, finding it does not violate Section 7 of the National Labor Relations Act. This decision marks a significant test of the Board's stringent Stericycle, Inc. standard adopted in August 2023.

The Challenged Policy

UPS's policy limits recording device use "while on work time and in work areas" to encourage "spontaneous and honest dialogue" and protect proprietary information, trade secrets, and employee privacy. The policy cites business justifications including preventing chilling effects on communication, protecting confidential information, and complying with state recording laws. Critically, the policy permits employees to possess recording devices on premises if used consistently with company policies.

The Stericycle Framework

Under Stericycle, Inc., 372 NLRB No. 113 (2023), the NLRB replaced the previous Boeing standard with a more stringent test. The General Counsel must first prove a workplace rule has a "reasonable tendency to chill" employees from exercising their Section 7 rights—which include the right to organize, bargain collectively, and engage in protected concerted activity. This assessment views rules from the perspective of a "reasonable employee who is economically dependent on her employer" and interprets ambiguities against the employer.

If this burden is met, the rule is presumptively unlawful. The employer may rebut this presumption only by proving the rule advances a "legitimate and substantial business interest" that cannot be protected by a more narrowly tailored alternative.

ALJ's Reasoning

Judge Gardner found the General Counsel failed the initial burden. His analysis highlighted several factors:

Limited Scope: Unlike blanket bans struck down in Whole Foods Market, Inc., 363 NLRB 300 (2015) and Rio All-Suites Hotel & Casino, the UPS policy restricts recording only during work time and in work areas—limitations consistent with established NLRA precedent allowing employers to restrict solicitation during working hours.

Permissive Language: The policy doesn't prohibit recording devices but asks users to "respect" certain limitations. Employees may possess devices on premises if used appropriately.

Employer's Clarification: UPS's counsel stated unequivocally in their brief that "the URD does not apply to any recording activity that would be protected under the NLRA." Judge Gardner found this binding statement as relevant as the opposite admission in Whole Foods Market, where the employer conceded its rule covered protected activity.

Established Doctrine: The work-time/work-area restriction aligns with the long-accepted principle that "working time is for work," recognized by the Supreme Court in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

Broader Context

Workplace recording policies have become increasingly contentious as smartphones make documentation ubiquitous. The NLRB has recognized that workplace recordings are often essential to vindicating Section 7 rights, particularly for documenting unfair labor practices, unsafe conditions, or organizing activities.

However, employers retain legitimate interests in protecting confidential information, trade secrets, and employee privacy. The challenge under Stericycle is demonstrating these interests cannot be served by narrower rules. Courts have found that protection of proprietary information or health information can justify recording restrictions when those interests are truly at stake.

Significance

This decision provides employers with guidance on drafting compliant recording policies under the Stericycle standard. Key takeaways include:

Limiting restrictions to work time and work areas (not blanket bans)
Articulating specific business justifications
Using permissive rather than prohibitive language
Clarifying the policy doesn't apply to protected NLRA activities
Avoiding overly broad restrictions that might chill organizing or documentation of workplace issues

The case remains subject to Board review, where the full NLRB could reverse the ALJ's decision. Given the Board's current composition and the Stericycle standard, appeal is likely. Any final Board decision would then be subject to circuit court review.

Impact on Employers

Under Stericycle's retroactive application, all workplace rules—even those deemed lawful under prior standards—face renewed scrutiny. Employers should review recording policies to ensure they:

Avoid blanket prohibitions
Include specific, legitimate business justifications
Are narrowly tailored to those interests
Don't restrict employees from documenting potential labor law violations
Comply with applicable state recording consent laws without overriding federal labor protections

The intersection of state recording laws (which may require all-party consent) and federal labor law protections remains complex, with NLRA rights generally preempting state restrictions when employees document protected activity.

Key Points

ALJ dismissed unfair labor practice charges against UPS recording device policy under Stericycle standard
Policy limited recording use to work time/work areas with business justifications for privacy and proprietary information
General Counsel failed to prove policy would reasonably chill Section 7 rights from employee perspective
Permissive language allowed device possession; policy asked employees to "respect" limitations rather than prohibiting outright
UPS affirmed policy doesn't apply to NLRA-protected recording activity—statement binding on employer
Work-time restriction comports with established NLRA precedent allowing employers to restrict solicitation during working hours
Distinguishable from Whole Foods and Rio All-Suites cases involving blanket bans without accommodations
Stericycle standard requires General Counsel to prove reasonable tendency to chill rights before burden shifts to employer
Significance: Provides roadmap for compliant recording policies under strict Stericycle test
Pending Board review: ALJ decision may be appealed to full NLRB for final determination