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Workplace Policies Prohibiting Employees’ Secret Recordings are not Facially Unlawful under the NLRA

By Elizabeth L. Phillips

Despite the National Labor Relations Board’s (“NLRB”) increasing scrutiny of common workplace policies, including those prohibiting employees from secretly recording conversations in the workplace (i.e., no-recording policies), two recent cases suggest employers may establish overriding business interests justifying restrictions on workplace recordings and provide guidance on crafting policies that don’t run afoul of the National Labor Relations Act (NLRA). 

In June 2016, the Second Circuit Court of Appeals affirmed the NLRB’s ruling (discussed here), that Whole Foods Market Group, Inc. (“Whole Foods”) violated the NLRA by maintaining an overbroad no-recording policies. Whole Foods Market Group Inc. v. NLRB, 2nd Cir., Nos. 16-0002-ag, 16-0346 (June 1, 2017) (Summary Order). The NLRB has held that the “mere maintenance” of overbroad bans on workplace recordings violates the NLRA because they impermissibly chill employees in exercising their Section 7 rights. Whole Foods’ policies prohibited employees from recording staff meetings or other workplace conversations without prior management approval or consent of all involved, and contained no exception for workplace recordings protected by Section 7, such as recordings of picketing or unsafe working conditions. Therefore, the Second Circuit agreed with the NLRB that employees could reasonably interpret the policies to prohibit protected activity, and the policies unlawfully interfered with employees’ rights under Section 7 to engage in concerted activities. 

Importantly, the Court stopped short of holding that “every no-recording policy” would violate employees’ Section 7 rights. Indeed, the Court ruled that Whole Foods’ justification for its policies, promoting open dialogue among employees, did not outweigh the “chill” such policies could have on employees’ exercise of their protected rights. However, a policy placing “some limits” on workplace recording may not violate the NLRA if it is narrowly tailored to further an employers’ business interest.

Similarly, the NLRB heard a challenge to a no-recording policy maintained by Mercedes-Benz U.S. International Inc. (“Mercedes-Benz”), which also contained no exception for concerted activity. There, the NLRB declined to find that the policy was facially unlawful at the summary judgment stage, noting that in previous decisions the NLRB has permitted employers to introduce evidence regarding asserted business justifications. Because Mercedes-Benz argued that its policy furthered legitimate business interests – protecting proprietary and confidential information, maintaining safety and production standards, and open communications – the NLRB ruled that Mercedes-Benz could introduce evidence of its business justifications. 

It remains to be seen whether Mercedes-Benz’s business interests will ultimately justify its no-recording policy in the eyes of the NLRB. While it is difficult to predict how the NLRB will treat no-recording policies, there are several actions employers may take to minimize the risk that a workplace policy prohibiting secret recordings will be found unlawful:

  • Ensure any no-recording policy is narrowly tailored to further legitimate business interests, such as protecting proprietary, confidential, and trade secret information, maintaining safety and production standards, and promoting open employee communications. 
  • Include an express statement in any no-recording policy explaining the justifications for the restrictions on workplace recording and clarifying that the policy is not intended to limit employees’ rights to engage in protected activity under Section 7. 
  • Consult with counsel before disciplining an employee for secretly recording a workplace conversation or interaction.

For further guidance on handling secret employee recordings, click here.