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More Handbook Guidance: NLRB permits employer to ban employees from secretly recording conversations

Most employers know by now that the National Labor Relations Board is closely scrutinizing non-union employers’ policies. 

 Since the NLRB began focusing more closely on workplace policies, however, it has expanded the types of policies it reviews, and is scrutinizing more than just social media policies.  In one recent case, an NLRB administrative law judge assessed whether an employer lawfully banned employees from recording conversations in the workplace.  The judge upheld the employer’s policy and, in doing so, provided more guidance on how employers can protect their interests without overstepping the National Labor Relations Act. 

The employer had issued a policy banning employees from recording any conversations in the workplace.  The employer claimed this policy was necessary because recording conversations could discourage “spontaneous and honest dialogue.”  After the employer issued this policy, a labor union challenged it by filing an unfair labor practice charge.  The NLRB’s general counsel processed the union’s charge, and argued that the policy could unlawfully prohibit employees from disclosing workplace concerns to the public and engaging in other activities that the NLRA protects.  For example, he argued that the policy could discourage employees from videotaping unsafe working conditions in an attempt to pressure their employer to fix them. 

The administrative judge rejected these claims, and upheld the policy.  He recognized that the NLRA bans any employment policies that could discourage a reasonable employee from engaging in protected activities, e.g., from acting to improve working conditions for herself and at least one coworker.  The judge held, however, that the policy did not violate this rule.  First, the policy did not expressly prohibit any protected activities, as the NLRA does not categorically permit employees to record conversations.  Second, the policy did not implicitly prohibit any protected activities, as the judge found that no reasonable employee would read the policy to bar protected actions, so long as they did not involve secretly recorded conversations.  Third, the employer did not unlawfully issue the policy in response to any protected activities, such as a union organizing campaign.  Rather, the employer issued the policy for a legitimate reason, i.e., to encourage free and open discussions.  For these reasons, the policy did not violate the NLRA. 

One notable aspect of this decision is what the judge did not hold.  Specifically, he did not hold that the NLRA prohibited employees from secretly recording workplace conversations; he simply held that NLRA did not categorically permit them to do so.  So, in essence, the judge held that employees could secretly record workplace conversations, unless the employer had an acceptable reason for prohibiting this.  Even though this judge’s decision will not bind the full NLRB, the NLRB likely would take the same position. 

There are two key takeaways from this case.  First, the decision once again shows that the NLRB will strike down any policy that could discourage a reasonable employee from acting to improve a group’s working conditions.  This rule applies to both union and non-union employers, and extends to more than just social media policies.  Employers who are concerned about whether their policies comply with the NLRA should consult with counsel, because it is far easier to revise a policy before the NLRB begins scrutinizing it, or before a union begins an organizing campaign. 

Second, the decision illustrates the challenges employers face as unions increasingly turn to technology to further their objectives.  As unions more frequently utilize smart phones, email, and social media to communicate with employees and publicize workplace disputes, it is essential for employers to understand how they can lawfully respond.  Although this is often a complex question, the decision here shows that properly drafted employment policies can accomplish their objectives while at the same time surviving the NLRB’s scrutiny. 

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