Have You Considered the Legality of Workplace Recording Policies?

Second Circuit to Determine Legality of Secret Workplace Recording Policies

Now that everyone has a smart phone, it is easy to record a conversation without the other person even being aware. In the workplace, employers are trying to take steps to prevent employees from secretly recording them. However, such policies can lead to legal hot water.

Digital Evidence in Employment Lawsuits

Employers are understandably leery of cell phone recordings coming back to haunt them. An increasing percentage of employment cases involve digital evidence, whether it is a text message, social media post, or a cell phone conversation. Given that so many employment lawsuits also come down to he said/she said, a recorded conversation containing a discriminatory or harassing statement can be extremely incriminatory. Even if the recordings are not admissible in court, employees may threaten to release the recordings to the press, the Equal Employment Opportunity Commission, or labor union in an attempt to secure a favorable settlement.

NLRB’s Position on Workplace Recordings

The National Labor Review Board (NLRB) has adopted the position that overly broad workplace rules prohibiting surreptitious recordings may violate Section 8(a)(1) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

The NLRB adopted the position in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), which is now before the Second Circuit Court of Appeals. The lawsuit involves two provisions in Whole Foods Market, Inc.’s (Whole Foods) General Information Guide (GIG) that prohibit recording in the workplace without prior management approval. One such rule states:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a 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 record- ed. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

In defense of the policy, Whole Foods maintained that the restrictions are intended to encourage open and free conversations in the workplace and prevent the chilling effect that the fear of being recorded could have on that dialogue. However, despite the stated business justification, the NLRB found that the rules would reasonably be construed by employees to prohibit Section 7 activity. It further concluded that “the rule contains language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth.”

The case is now on appeal before the Second Circuit. During oral arguments, the court questioned whether employers could narrowly tailor their policies by including disclaimer language that informs workers that any restrictions are not intended to prohibit the recording of activities protected under Section 7 of the NLRA. While the NLRB previously rejected this compromise, it also failed to offer any other alternatives.

Given the lack of clear legal standards regarding workplace policies governing cell phone recordings, the Second Circuit’s decision should bring much-needed clarity. We encourage employers to check back here for updates and contact one of our employment attorneys with any concerns.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Jorge R. de Armas or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.