Circuit Court Is Asked To Overturn NLRB’s Decision Allowing Surreptitious Workplace Recordings

March 2, 2017 | By Thomas T. Hearn

Can employees record conversations at the workplace without the consent of the speakers? Or, can an employer enforce a policy that prohibits employees from recording conversations at work unless they have the consent of all the parties being recorded?  Employers are up in the air over this issue.  The reality of the modern workplace is that nearly every employee owns and carries a smartphone that is capable of producing high quality audio and video recordings.  It is a safe bet that without a clear and strict policy to act as a deterrent, smartphones will be used by employees surreptitiously, potentially damaging workplace relationships, compromising protected information and exposing employers to potential liability.

Last year, in February 2016, the National Labor Relations Board (NLRB) ruled that Whole Foods Market, Inc.’s policies that prohibited recordings without proper authorization or the consent of the parties being recorded, were unlawful. Whole Foods Market, Inc., 363 NLRB No. 87 (2015).  On February 24, 2017, a panel of three judges for the United States Court of Appeals for the Second Circuit heard oral argument from the NLRB and Whole Foods as to why the Court should accept or overturn the NLRB’s decision.  A ruling from the Second Circuit on the issue is expected in the coming months.

In The Absence Of A More Narrowly Tailored Policy, The NLRB Determined That Surreptitious Workplace Recordings Are Protected

Although Whole Foods maintained that the purpose of the policy was to encourage open communication and to eliminate the “chilling effect” on the expression of views that may exist when an employee is concerned that his or her conversation is being secretly recorded, the NLRB found that the proffered business justification was inadequate. Whole Foods further maintained that the policies preserved privacy interests such as employee medical issues, discipline, performance and the employer’s confidential business strategy and trade secret information.  The NLRB held that although those justifications were not without merit, they were not compelling enough to override the protections of the Act.  As a result the NLRB determined that the policies were overbroad as written because they prohibited all recording without clearly specifying under what circumstances recording could occur.  Ironically, the NLRB held that such overly broad and unqualified policies have a “chilling effect” on an employee’s exercise of Section 7 rights, which are protected under the National Labor Relations Act (Act).  In its decision, the NLRB went on to characterize covert (surreptitious) recordings as an essential element in vindicating Section 7 rights, thereby condoning and protecting that type of behavior.

The Second Circuit Recommended A Solution That Has Been Repeatedly Rejected By The NLRB

During oral argument before the Second Circuit, Whole Foods reiterated the position it presented to the NLRB and maintained that its policies actually helped foster protected activities because they allowed employees to speak freely, including during company events such as “town hall meetings.” In an exchange with the panel of judges, the panel questioned Whole Foods about why it could not more narrowly tailor its policies so as not to violate Section 7 of the Act.  Whole Foods pointed out that the NLRB has offered no guidance on this issue, thus leaving employers to promulgate such policies at their peril.  Interestingly, in another exchange, the panel recommended adding disclaimer language to the policy that would alert employees that the policies were not intended to prohibit the recording of activities or conversation that fall within the ambit of Section 7 of the Act, a position that the NLRB has repeatedly rejected as a policy cure.  A decision from the Second Circuit embracing such a recommendation would be welcomed by the business community.

Without Clear Guidance On This Issue, Employers Remain Exposed

The Second Circuit has the opportunity and authority to overturn the NLRB’s decision or provide guidance and clarity as to how employers can maintain and implement policies against surreptitious recordings without running afoul of the Act. Whatever the decision holds, it could have a tremendous impact on all employers, good or bad.

If you have any questions about the NLRB’s decision in Whole Foods Market, Inc., 363 NLRB No. 87 (2015) or how it may impact your business, HRLegalist urges you to consult labor counsel.

Categorized In: NLRB, Workplace Policies
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About the Authors

Thomas Hearn

Thomas T. Hearn


Thomas concentrates his practice in labor and management relations, employment discrimination and employee contracts.

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