John Persinger is an associate with MacDonald, Illig, Jones & Britton LLP and a former White House staffer. He represents individuals, businesses and nonprofits in their dealings with federal, Commonwealth and local government entities.
Does your company have a policy prohibiting the recording of conversations, phone calls or company meetings?
If so, you may be violating the National Labor Relations Act (“NLRA”).
The NLRB Decision
In December, the National Labor Relations Board (“NLRB”) determined that Whole Foods Market’s anti-recording policy (the “Policy”) violated its employees’ right to engage in protected activity under the NLRA. The Policy prohibited employees from recording “conversations, phone calls, images or company meetings” unless the
employee received prior approval. Among other reasons, the company explained that it hosts personnel meetings where confidential matters are discussed, such as financial needs or personal situations. Whole Foods argued that the recording of these meetings, unbeknownst to others, would have a detrimental effect.
Despite Whole Foods’ concerns, the NLRB determined that the Policy violated the NLRA. Section 7 of the NLRA provides employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) makes it an unfair labor practice “to interfere
with, restrain, or coerce employees in the exercise” of their Section 7 rights.
The NLRB’s decision hinged on the employees’ interpretation of the Policy. The NLRB found that employees would reasonably read this anti-recording rule as prohibiting the recording of activity that would be protected by Section 7. In the NLRB’s words, the Policy would “reasonably chill” employees in the exercise of their Section 7 rights. Thus, the NLRB determined that the Policy violated Section 8(a)(1).
What is surprising about this decision is the NLRB’s opinion of “concerted activity.” The NLRB noted that the act of recording or photography is not a “solitary, nonconcerted act encompassing a ‘limited scope of protected activity.’ “Instead, an individual recording images or sound in the workplace may be engaging in protected activity. Group activity is not necessarily required. One person’s action will be “deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action.”
The NLRB’s interpretation has significant implications in our social media-dominated world. For example, an employee could post a comment on Facebook, which is neither seen nor commented on by another person. As long as that employee intended to induce group action, under the NLRB’s analysis, this Facebook post would be
concerted activity protected by the NLRA. Unless the comment was so egregious as to lose the protection of the NLRA, the employer could not take any action against that employee for this Facebook post.
Employers must proceed cautiously when drafting and implementing anti-recording policies. Protecting trade secrets and confidential discussions from being recorded is good business practice. However, as the NLRB makes clear, if an employee would interpret a policy as restricting the ability to exercise Section 7 rights, then that policy will be deemed unlawful.
One final comment is that Pennsylvania’s wiretapping statute requires a person to obtain the consent of all parties before recording a conversation. Thus, if an
employee is recording any telephone conversations in the workplace and does not have the consent of everyone on that phone call, then the employee is violating
the state wiretapping law.
If you need assistance in drafting or implementing an anti-recording policy, contact a member of MacDonald Illig’s Labor and Employment Practice Group at 814/870-7600.