State data trespass statutes and federal labor law

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Workers Un-Gagged: State Data Trespass Laws & Federal Labor Pre-Emption

Eric M. Fink

Associate Professor, Elon Law School

State data trespass laws impose civil or criminal liability for unauthorized recording and other data collection on certain private property. Employees of the property owner, or otherwise working on the premises, are among those subject to data trespass laws. Yet, federal labor law protects some of the activity that state data trespass laws restrict. Because of this conflict, traditional principles of federal labor pre-emption render state data trespass laws invalid as applied to employee activity and employer rules or actions that are at least arguably permitted or prohibited under the NLRA.