For the Record
By STEFANIE RENAUD, Esq.
In December, the National Labor Relations Board (NLRB) struck down a Whole Foods policy banning employees from secretly recording conversations in the workplace as an unfair labor practice (ULP).
The NLRB concluded that the policy violated the National Labor Relations Act (NLRA) because it infringed on employees’ right to engage in concerted activity, which is protected by Section 7 of the NLRA. Concerted activity includes the ability to form, join, or assist a union; choose representatives to bargain with the company on employees’ behalf; and act together with other employees for mutual benefit and protection.
The NLRA applies to all employers, unionized or not, and all employees have the right to file a ULP charge with the NLRB if they believe a company policy interferes with their protected rights.
Whole Foods’ challenged policy was designed to foster open communication between employees and management by ensuring that conversations, phone calls, images, and company meetings were not recorded without prior authorization by management or consent of all recorded parties. Whole Foods’ goal was to “eliminate [the] 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.”
Despite noble intentions, the NLRB concluded the policy was overbroad and had to be struck, because an employee could reasonably conclude that it infringed on his or her Section 7 rights. Under Section 7, photography, audio and video recording, as well as posting photographs and recordings on social media, are considered protected activity if employees are acting in concert for their mutual aid and protection, and there is no overriding employer interest. An employee acting alone may be engaged in protected activity if he or she makes the recording to further a group action, is attempting to enforce the terms of a collective-bargaining agreement, or is attempting to initiate or induce group action.
While the Whole Foods policy did not explicitly restrict or chill protected activity by prohibiting employees from engaging in protected activities, the NLRB nonetheless concluded that an employee could reasonably understand the policy to prohibit Section 7 activity. Aiding this conclusion, Whole Foods’ sole witness admitted that the policy would apply even if an employee were engaged in protected activity. Whole Foods’ policy also required employees to seek management permission to make recordings on non-working time, another infringement on employees’ Section 7 rights.
The NLRB distinguished this case from those where an employer had a compelling privacy interest that merited upholding a recording ban. For example, in Flagstaff Medical Center, 357 NLRB No. 65 (2011), enfd. in relevant part, 715 F.3d 928 (D.C. Cir. 2013), the NLRB upheld a hospital policy banning secret recordings because it protected patients’ health and privacy information. Outside of patient care, however, it is unclear what employer interest would be compelling enough for the NLRB to uphold a ban on secret recordings.
The consequences of a ULP finding are serious. The NLRB ordered Whole Foods to print and supply an insert regarding the illegality of the policy to every employee, at significant cost. The NLRB also ordered Whole Foods to post a notice in all facilities nationwide stating that “the [NLRB] has found that we violated federal labor law” and that employees have the right to “form, join or assist a union; choose representatives to bargain with us on your behalf; and act together with other employees for your benefit and protection.”
Clearly, even a small mistake can have huge consequences for the employer.
Massachusetts employers should also be aware that a recording that may deserve protection under the NLRA could still be illegal in the Bay State. Massachusetts is an ‘all party consent’ state, meaning that audio recordings (video recording and photography are not covered) made without the knowledge or consent of all parties involved violate the wiretap law. A violation of the wiretap law is a felony punishable by up to five years in prison or two and a half years in jail, fines up to $10,000, or a combination of fines and imprisonment.
The statute also provides a civil cause of action for any person ‘aggrieved’ by illegal wiretapping, but an employer cannot be considered an ‘aggrieved person.’ Only the individual whose voice was recorded could bring a lawsuit against the employee who made the unauthorized recording, even if the recordings were made at work. So there are few remedies available to employers when a worker secretly records a conversation.
To comply with the NLRA, the NLRB recommends that any policy against secret recordings specifically reference the applicable state wiretap laws. In Massachusetts, employers may want to include a provision that states that the policy applies only to those recordings that do not comply with Massachusetts law. In addition, the NLRB suggests that any recording policy explicitly state that it does not apply to recordings made as part of protected activity or to recordings made on non-working time.
Because a mistake in this area can create huge liability, Massachusetts employers should revisit their policies and handbooks with their labor and employment counsel to ensure compliance with both Massachusetts and federal law.
This column is not intended as legal advice related to individual situations. If your business is facing a specific legal problem, consult your labor and employment counsel for legal advice and planning.
Stefanie Renaud, Esq. is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She is admitted to practice in Massachusetts; (413) 737-4753; firstname.lastname@example.org