Does your Company Handbook prohibit recording conversations at work without management approval? If so, your policy is unlawful in light of a recent decision by the National Labor Relations Board (“NLRB”).
Recently, the NLRB analyzed Whole Foods Market Group, Inc.’s recording policy. The rule provided it was a violation “to record conversations, phone calls, images or company meetings with any recording device unless prior approval is received” from a supervisor or “all parties give their consent.” Whole Foods argued the rule protected employees’ free speech rights since it prevented them from fearing they were being recorded without their knowledge. This seems completely reasonable, right?
The NLRB disagreed. Under Section 7 of the National Labor Relations Act, the Act the NLRB enforces, employees have a right to take photos and make recordings when they are acting in concert for the mutual aid and protection of more than one employee. This means employees must be allowed to take photos and video recordings of union strikes, unsafe working conditions (actual or legitimately perceived), and even discussions with their co-workers about work, even if the purpose is to build a court case against the company. Based on this precedent, the NLRB held the Whole Foods provision was overly broad because it did not allow for these types of recordings.
In an information age where everyone has a smart phone, how do you comply with the NLRB’s recording rule and ensure that your employees aren’t becoming Big Brother? The key is to have a narrowly tailored policy. This means the policy can prohibit recordings that are made only for the employee’s sole benefit. For instance, if an employee pulls out his or her I-Phone during a termination meeting and says they want to record it, you can inform the employee that no recordings are allowed. The same would not be true in an employee meeting where constructive criticism collectively delivered to a group of employees. The latter would be an example of employees engaging in concerted activity.
It should also be noted that recording conversations implicate various state and federal laws. For instance, New York is a one party consent state meaning that only one party must be aware of the recording for it to be lawful. On the other hand, Connecticut is an all party consent state for at least the recording of telephonic conversations. Thus, both the recorder and person being taped must know of the recording.
Employers should review their Handbook and revise the recording rule if it is not narrowly tailored to comply with the NLRB’s recent Whole Foods decision. Additionally, employers should be cognizant of the fact that this means they may be recorded at almost all time. Thus, try to avoid starring in a smoking gun recording that later ends up as evidence number one in a trial.
Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
