Several recent labor rulings by the National Labor Relations Board have held that employers cannot stop employees from making recordings at work. Gone may be the time when the boss could issue a policy banning recordings at the workplace. Depending upon your state’s wiretap laws, most states allow recording audio, secretly, so long as one party consents, Pennsylvania requires both consent; this is a “game changer.” As an employer, to avoid possible surprise lawsuits, you must review and update your policies and educate your administration and employees.
In view of the proliferation of smartphones just about everyone has a camera at the ready, perhaps looking to catch the boss breaking labor laws or, if union, the Collective Bargaining Agreement (“CBA”).
In December, 2015, the National Labor Relations Board (“NLRB”) held that Grocer, Whole Foods, cannot forbid employees from recording conversations or taking photographs without a supervisor’s permission. Where the device, i.e., smartphone, is held up and is shown to appear to be recording, those who continue speaking may be considered to have given implied consent or it is done in a public area where no privacy is reasonably expected.
The issue in Whole Foods was the Employee Manual which had a rule prohibiting the recording of conversations or photos inside a store, “unless prior approval is received” from administration or all give consent. While the company argued its rule, common in the workplace past, was to prevent the chilling effect on the expression of views, to foster free expression, the NLRB saw it the other way. It held that anti recording policy violated federal law and had a very chilling effect on employee speech, pointing to a prohibition of employees taking photos of unsafe working conditions or recording evidence of discrimination. Recordings are also used by workers in union organizing campaigns, even employer’s anti-union meetings. Some believe that the NLRB ruling will likely make management more cognizant of their actions, knowing they may be recorded, to help them be aware to follow the law.
Most recently, in April, 2017, a NLRB Judge agreed with the earlier Whole Foods decision and ordered AT&T Mobility to strike a policy prohibiting employees from recording at the workplace. The Judge held that the policy infringed on the worker’s rights to “act in concert” under the NLRB. While this was only a decision by one Judge, not the entire NLRB, likely if appealed “reading the tea leaves,” and the Whole Foods decision, it will be affirmed.
In AT&T, an employee secretly recorded a conversation with a manager. When discovered he had recorded without consent, the employee was ordered to delete the recording and not do it in the future. This employer policy was found to violate the National Labor Relations Act (“NLRA”) when it, “reasonably tends to dull employees in the exercise of their Section 7 rights.
In sum, we suggest strongly that all employment policies should be updated annually or at the least every two years to accommodate the ever changing labor and employment laws and rulings. It is most prudent to consult with experienced labor counsel.
ABOUT NEIL A. MORRIS
Neil Morris has passionately represented employers for the last 30 years. He concentrates in the areas of labor and employment, municipal labor law, employment discrimination, defamation defense, commercial litigation, and business litigation. He has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.
ABOUT GABRIEL CELII
email@example.com | 267.338.1361
Mr. Celii devotes his practice to representing businesses and municipal entities navigating labor and employment disputes ranging from wage and hour litigation and work place discrimination defense to labor negotiations and the resolution of grievances. During his representation of Philadelphia-area Townships and Counties, he has successfully defended claims brought against public officials and advised municipalities on the drafting of local ordinances, such as Police Pension DROP amendments.
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