Can Employers Prohibit Recording Workplace Conversations?

by Stefanie Renaud

Imagine this scenario: you call an employee into your office to be disciplined.  Unbeknownst to you, the employee records the conversation on her cell phone. Later, you overhear the employee playing the recording back to some co-workers in the break room. Furious about the invasion of privacy and violation of company policy, you terminate the employee on the spot. Case closed, right? Think again!

In a case decided in December, 2015, the National Labor Relations Board (“NLRB”) struck down a Whole Foods policy that banned employees from secretly recording conversations in the workplace as an Unfair Labor Practice, because that policy infringed on an employee’s right to engage in concerted activity under the National Labor Relations Act (“NLRA”).  The NLRA applies to all employers, whether or not they are unionized, and concerted activity is protected under Section 7 of the Act.  Concerted activity refers to an employee’s ability to form, join or assist a union; choose representatives to bargain with the company on their behalf; and act together with other employees for mutual benefit and protection.  According to the NLRB, Whole Foods’ Policy interfered with employee’s Section 7 rights and was therefore illegal under the NLRA.

Whole Foods never intended its policy to interfere with an employee’s right to engage in concerted activity.  The challenged policy was designed to foster open communication between employees and management by ensuring that conversations, phone calls, images, and company meetings were not recorded without prior authorization by management or consent of all recorded parties.  In instituting the policy, Whole Foods hoped to “eliminate [the] chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

Despite Whole Foods’ noble intentions, the Board concluded that this policy was overbroad and had to be struck, because an employee could reasonably conclude that it infringed on his or her Section 7 rights.  Under Section 7, photography, audio and video recording, as well as posting photographs and recordings on social media, is considered protected activity if employees are acting “in concert” for their mutual aid and protection, and there is no overriding employer interest.  An employee acting alone may also be engaged in protected activity if he or she makes the recording to further a group action, is attempting to enforce the terms of a collective-bargaining agreement, or attempting to initiate or induce group action. The NLRB also noted that evidence obtained from secret recordings was often essential to the vindication of Section 7 rights.

The NLRB noted that Whole Foods’ policy did not explicitly restrict or chill protected activity because it did not prohibit employees from engaging in the activities protected under the statute.  However, the NLRB nonetheless concluded that an employee could reasonably understand the language of the policy to prohibit Section 7 activity.  Aiding this conclusion, the sole witness for Whole Foods admitted under oath that the policy would apply even if the employee was engaged in protected activity under Section 7.  Worse, Whole Foods’ policy also impermissibly required employees to seek management permission to make recordings on non-working time.

The NLRB distinguished the Whole Foods policy from cases where an employer had a compelling privacy interest that merited the ban on recording.  One such case was Flagstaff Medical Center, 357 NLRB No. 65 (2011), enfd. in relevant part, 715 F.3d 928 (D.C. Cir. 2013), where a hospital banned secret recordings to protect the health and privacy information of its patients.  For those employers not engaged in patient care, it remains unclear what type of privacy interest the Board would find compelling enough to uphold a ban on secret recordings.

Because the NLRA applies to all employers, regardless of whether or not their employees belong to a union, all employees have the right to file Unfair Labor Practice charges with the NLRB if they believe a company policy interferes with their rights to engage in concerted activity.  As this case shows, these types of violations are nothing to sneeze at. The NLRB ordered that Whole Foods print and supply an insert regarding the illegality of the policy to every employee, at significant cost.  The NLRB also ordered that Whole Foods post a notice in all facilities nationwide stating that “The [NLRB] has found that we violated Federal labor law” and that employees have the right to “form, join or assist a union; choose representatives to bargain with us on your behalf; and act together with other employees for your benefit and protection.”  It is easy to see how a small mistake can end up costing your company thousands of dollars.

Just because workplace recording might be permissible under the NLRA, does not mean that they are permissible under Massachusetts law.  Massachusetts has one of the most restrictive wiretap laws in the country.  Massachusetts is an “all party consent” state, which means that secret audio recordings made without the knowledge or consent of all the parties involved violates the wiretap statute.  (Video recording and photography are not covered.)  Violation of the wiretap law is a felony, punishable by up to five years in prison or two and a half years in jail.  Violators may also be fined up to $10,000 or receive a combination of fine and imprisonment.  The statute also provides a civil cause of action for any person “aggrieved” by illegal wiretapping against the person who made the illegal recording.  Employees who make secret recordings in violation of the wiretap statute would likely be held personally liable even if the recordings were made during their employment.  Unfortunately, the only person who can bring that cause of action is the person whose conversation was illegally recorded: an employer cannot be an “aggrieved person” under the statute.

To comply with the NLRA, the NLRB recommends that any employer policy regarding recordings specifically reference the requirements of the state’s wiretap laws.  In Massachusetts, employers may want to include a provision that states that the policy applies only to those recordings that do not comply with Massachusetts law.  In addition, the NLRB’s decision indicates that any policy should explicitly state that it does not apply to recordings made as part of protected activity and that it does not apply to recordings made on non-working time.

As a new year begins, employers should revisit their policies and handbooks to ensure that those policies are compliant with this latest ruling.

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