These days smartphones are everywhere, and are often the first on the scene to capture the latest news stories. With one in almost every American’s pocket, they have increasingly been used to document everything, from today’s lunch to, say, discreet or private workplace conversations. Can employers do anything about it?
The National Labor Relations Act (“NLRA”) protects employees who wish to work together to improve conditions in the workplace by providing private sector employees the right to engage in certain concerted activities without fear of retaliation. The NLRA grants employees the right to be a part of a union or labor organization, bargain collectively, or refrain from such activities if they so choose. Those protected activities—such as having conversations about workplace conditions (even when posted to social media) or bringing a union representative to a disciplinary meeting—are generally out of reach from restraint by employers.
Some recordings made in the workplace are protected under Section 7 of NLRA, even if they are covert. Protected recordings include those intended to document evidence for use in a future proceeding, to police collective bargaining agreements, or to document meetings regarding unionization. Essentially, employees have free reign to record potential violations of the NLRA in order to protect their federally guaranteed rights. State laws regarding recording are preempted in situations where the NLRA is applicable, meaning that state laws are irrelevant so long as the recording is made to protect employees’ rights under the NLRA.
However, employers are not completely without recourse. Employers do have the ability to institute a no-recording policy. Employers just need to be careful when instituting such a policy to ensure that it does not infringe on an employee’s protected rights. Any anti-recording policy must be facially neutral, and any potential interference with NLRA rights must be outweighed by the employer’s valid justifications for implementing the policy. Valid justifications for implementing a no-recording policy could include the protection of trade secrets, protection of customer information, customer privacy, or security concerns. For example, a hospital likely has a significant interest in protecting confidential patient personal health information because healthcare organizations are required to do so by federal law. Depending on the strength of the justification for the no-recording policy, such policies can have a slight impact on Section 7 rights—such as potentially preventing employees from recording conversations amongst themselves about working conditions—but still be found lawful because they do not prohibit those protected conversations altogether.
When lawful no-recording policies are in effect, enforcement must yield to the protection of employee rights. This means regardless of the employer’s policy or otherwise applicable state law, employees may record conversations or conduct that is potentially in violation of the NLRA and will not be in breach of the law if the purpose of the recording is to capture such conduct. In other words, even a lawful no-recording policy cannot be unlawfully applied. One reason for this is that in situations where there may be protected NLRA rights involved, the justifications for the no-recording policy are typically not at play. For example, turning back to the hospital scenario, a termination meeting involving a hospital employee does not typically include a discussion about confidential patient information. Employers do have the right to warn employees of the consequences for violations of lawful no-recording policies. However, employers don’t have the right to give a warning if the purpose of the recording is documenting an NLRA protected activity.
There is no doubt that the rules in this area are nuanced and can be tricky. If you have any questions concerning workplace no-recording policies or need advice on drafting or revising such a policy, please contact Katie Campbell or another member of the firm’s Labor & Employment Practice Group.