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Jan 4, 2016

By Eric B. Meyer

There was a time when a secret recording in the workplace implied an expectation of privacy in whatever conversation was recorded.

But, now, everyone has a smartphone and, with a few quick thumb taps, an easy way to audio or video record anything and everything.

So, who among us has a reasonable expectation of privacy at work?

According to the National Labor Relations Board, practically no one who works for the company.

NLRB: Work recordings promote protected concerted activity

In a decision issued last week, the NLRB concluded that an employer (Whole Foods) could not maintain a workplace rule that banned employees from recording workplace conversations, absent prior company approval.

The company’s handbook expressly stated that one of the purposes of the policy was to “eliminate a 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.”

The policy added that “this concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” Ironically, however, the Board felt that this rule would have the opposite effect and discourage employees from discussing workings conditions with one another:

That the rule contains language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth. The Respondent’s witness testified that the rules apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.”

Thus, the Respondent has effectively admitted that the rules cover all recording, even that which is part of the res gestae of protected concerted activity. In light of the broad and unqualified language of the rules and the Respondent’s admission as to their scope, we find that employees would reasonably read the rules as prohibiting recording activity that would be protected by Section 7.”

Remember, Section 7 applies to both unionized and many non-unionized workplaces. Indeed, the employer in this case was non-union.

So, can I record my co-worker’s bathroom sounds?

Yeah, not so fast, sicko.

Still, there may be situations in which privacy interests outweigh the right to engage in protected concerted activity. For example, the NLRB highlighted a prior decision in which a Board majority found that an employer policy that prohibited the use of cameras for recording images in a hospital setting was OK. Similarly, there’s this NLRB precedent, where a panel majority struck down rules banning the use of cameras, camera phones, audio visual recording equipment and other recording devices.

Even the most recent NLRB decision decrying a universal workplace-recording ban strongly suggests that a qualified recording ban (e.g., trade secrets, customers, patients, and poopy sounds are off limits) would be OK. Plus, there are many states with laws requiring two-party consent for recordings.

(Although I question how far these state laws reach into the workplace anymore. For example, Pennsylvania’s two-party consent law only attaches where there is an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” In today’s smartphone world, there are very few situations in which an employee having a conversation at work enjoys a reasonable expectation of privacy.)

So, add to your New Year’s HR checklist a review of your employee handbook to ensure that it is carefully tailored to restrict workplace recordings.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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