Can You Stop Your Employees From Secretly Recording Conversations While At Work? by Slade D. Sokol

01-Jan-2018

Can You Stop Your Employees From Secretly Recording Conversations While At Work?

By Slade D. Sokol

            The brief answer to this question is “it depends.”  The legality of no-recording policies is a relatively hot-button issue has have been addressed by the National Labor Relations Board (the “NLRB” or “Board”), and now by the Second and Fifth Circuit Courts of Appeal.  The leading case is Whole Foods Mkt. Grp., Inc. v. NLRB (“Whole Foods”).  In that case, the Second Circuit affirmed the NLRB’s finding that Whole Foods violated Sections 7 and 8(a)(1) of the National Labor Relations Act (the “Act”) by maintaining overbroad no-recording policies.  The Fifth Circuit Court of Appeals addressed a similarly overbroad no-recording policy and struck it down in T-Mobile USA Inc. v. NLRB.  These cases provide guidelines that Idaho employers should take into account when crafting a policy that prohibits employees from recording conversations while at work.

            Sections 7 and 8 of the Act.    For background purposes, recall that Section 7 of the Act provides, in pertinent part, employees with the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In turn, Section 8(a)(1) of the Act makes it an unfair labor practice “for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7.  This essentially means that employees have the right to take certain actions that are intended to help improve or protect the terms and conditions of their employment.  Employers who restrain or interfere with these rights can be found to have committed an unfair labor practice. 

            In determining whether an employer’s policy violates Section 8(a)(1), the NLRB and courts look at whether the rules/policies would tend to chill employees in the exercise of their Section 7 rights.  A policy that explicitly restricts protected Section 7 activities is unlawful.  Moreover, a policy that does not explicitly restrict Section 7 activities “is still unlawful where: ‘(1) employees would reasonably construe the [policy] to prohibit Section 7 rights; (2) the [policy] was promulgated in response to union activity; or (3) the [policy] has been applied to restrict the exercise of Section 7 rights.’“

            The Second Circuit Affirms the Board’s Decision in Whole Foods. The issue before the Board and the Second Circuit in Whole Foods was whether Whole Foods’ employees would “reasonably construe the [no-recording policies at issue] to prohibit” Section 7 rights and activities.  The specific policies Whole Foods enforced provided:

  1. In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.

  1. 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 recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

             Whole Foods had argued before the Board that these policies were lawful because they were limited to recording that took place on working time, and did not apply when the employee was not at work, or was on non-work time such as break time.  The Board rejected this argument because the language of the policies did not differentiate between recording on working and non-working time.  This finding appears to indicate that an employer’s no-recording policy should identify when recording is not permitted.

            Whole Foods also contended that its policies were lawful, and in furtherance of an overriding employer interest (i.e., a business justification): (1) because they were in place to “preserve privacy interests, including personal and medical information about team members, comments about their performance, details about their discipline, criticism of store leadership, and confidential business strategy and trade secrets”; and, (2) because they contained “an  embedded rationale—the encouragement of open communication—that would lead a reasonable employee to understand their lawful purpose.” 

            The Board rejected these arguments reasoning that, while Whole Foods’ “business justification is not without merit, . . . [it] is not nearly as pervasive or compelling as the patient privacy interest” found in Flagstaff Medical Center, 357 NLRB No. 65 (2011).  In Flagstaff, the Board found that a hospital’s no-recording policy did not violate the Act because of the “weighty... patient privacy interest and the employer’s well-understood HIPAA obligation to prevent the wrongful disclosure of individually identifiable health information, [which] employees would reasonably interpret the rule as a legitimate means of protecting those interests, not as a prohibition of protected activity.”  This finding appears to indicate that an employer’s no-recording policy, if drafted to apply broadly, must be supported by an employer’s interest, or business justification, that is identifiable and is as strong as the interest in protecting patients’ health information.  If an employer has a legal obligation in relation to protecting the information sought to be protected by the no-recording policy, then the strength of the employer’s interest/business justification is likely increased.

            Ultimately, the Whole Foods Board held that the policies at issue prohibited “the recording of conversations, phone calls, images or company meetings with a camera or recording device without prior approval by management,” which would reasonably be construed by employees to prohibit Section 7 activities (i.e., acting in concert for their mutual aid and protection), and there was no overriding employer interest present.  The Board cited specific examples of protected Section 7 activities where photography or recordings, often covert, were used in vindicating Section 7 rights: “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forms in employment related actions.” 

            The Board further reasoned (1) that Whole Foods’ policies were overbroad because they unqualifiedly prohibited all workplace recording regardless of the activity that an employee is engaged in, whether protected concerted activity or not; (2) that Whole Foods’ policies did not differentiate between recordings protected by Section 7 and those that were unprotected; and, (3) that Whole Foods’ policies were unlawful because they required employees to obtain the employer’s permission before engaging in recording on non-work time, and that any policy or rule that required employer consent as a precondition to engaging in protected concerted activity on an employee’s free time and in non-work areas is unlawful.  This reasoning indicates that an employer’s policy (1) should not outright prohibit all workplace recording; (2) should not prohibit recording concerted activities protected by Section 7; and, (3) should not require the employer’s consent prior to engaging in recording that is protected by Section 7.

            The Second Circuit Court of Appeals summarily affirmed the Board’s decision.  The Court, did however, recognize that its decision was not “to say that every no-recording policy will infringe on employees’ Section 7 rights.  It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act.  Whole Foods’ interests in maintaining such policies can be accommodated simply by their narrowing the policies' scope.” 

            The Fifth Circuit Affirms the Board’s Decision in T-Mobile. The Fifth Circuit recently came to the same conclusion as did the Second Circuit regarding a similarly broad no-recording policy implemented by T-Mobile.  T-Mobile’s policy at issue provided:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [T- Mobile] activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

           

            The Board determined that this policy violated Section 8(a)(1), and would discourage workers from engaging in protected activity, because (1) the policy banned all recordings; (2) the policy banned recordings made during non-work time and in non-work areas; (3) the policy did not differentiate between recordings that were protected by Section 7 and those that were not; and, (4) the policy unlawfully required employees to obtain permission from management before engaging in any recording activity during non-work time. 

            The Board rejected T-Mobile’s argument that it had a legitimate interest in maintaining employee privacy, protecting confidential information, and promoting open communication on the grounds that these were not overriding interests that would permit T-Mobile’s policy’s broad ban on recording.  Further, the Board found that T-Mobile had not narrowly tailored its policy to protect any demonstrated legitimate interest or to reasonably exclude Section 7 activity from the policy’s broad reach.  

            In affirming the Board’s decision, the Fifth Circuit Court of Appeals noted (1) that it was “concerned with the broad reach of the recording” policy, which “encompass[ed] any and all photography or recording on corporate premises at any time without permission from a supervisor”; (2) that, by its broad terms, a “reasonable employee, generally aware of employee rights, would interpret it to discourage protected concerted activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board”; and, (3) that T-Mobile’s asserted justifications in the policy “does not alter the fact that the operative language of the [policy] on its face prohibits protected Section 7 activity, including Section 7 activity wholly unrelated to those stated interests.”

            What Should You Consider in Drafting a Narrowly Tailored No-Workplace Recording Policy.  While there are no bright-lined rules or guidelines for drafting a policy that would withstand scrutiny from the NLRB or courts, there are certain considerations that should be taken into account: 

  • A policy that prohibits all employee recording will likely violate Section 7.[1]
  • The policy should not outright prohibit all workplace recording, unless you have an overriding legitimate interest that is as strong as a hospital’s interest in protecting patient health information. 
  • The policy should identify and be related to your overriding legitimate interest. If you have a legal obligation to protect certain information, then the strength of your interest is likely increased. Note that the protection of confidential information concerning your customers, vendors, suppliers, trade secrets, or other information would likely not justify a broad no-recording policy.
  • The policy should not prohibit recording activities that are protected by Section 7 – even if an employee is on work time.
  • The policy should not require your consent prior to an employee recording.
  • The policy should indicate and clearly convey to your employees that it is not intended to interfere, infringe, or restrain employee rights protected by Section 7.
  • The policy could define the time, area, and/or activities when your employees are prohibited from recording due to your overriding, legitimate interest.  For example, limit the policy to prohibiting recording during work time, while in work areas, or while conducting employer business.  Note that while defining these limitations may assist you in defending your narrowly tailored no-recording policy, the NLRB or a court may still find that your policy violates Section 7 given that photography or recordings, often covert and during work time and in work areas, have been used in vindicating Section 7 rights.
  • Idaho is a one-party consent state and permits a person to record a conversation without telling the other parties so long as that person is one of the parties to the conversation.   Likewise, Federal law also permits a person to record a communication where such person is a party to the communication or where one of the parties to the communication has given prior consent. As such, a no-recording policy would likely not benefit, in terms of enforceability, from reference to these laws.  If, however, you operate in states with laws that prohibit non-consensual recordings, or two-party/all-party consent states, then those laws should be identified in the policy.[2]  

            Because litigating a no-recording policy before the NLRB and the courts can be an expensive and time consuming process, we recommend that you get in front of the issues raised by such policies at the earliest possible opportunity.  In other words, it would likely save you time and money in the long run to get the advice and assistance of counsel in drafting your no-recording policy in a narrow manner so that it will withstand scrutiny of the NLRB and the courts.



[1] Recall that the recording of activities that are concerted and involve terms and conditions of employment are likely protected by Section 7.

[2] Generally speaking, in two-party/all-party consent states, the person recording the conversation must notify all other parties and they must consent to the recording.