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Do Employees Have a Statutory Right to Make Secret Audio Recordings in the Workplace?

 by Jeffrey M. Place on February 24, 2011

On Valentine’s Day, 2011, the Board held that an employer violated the National Labor Relations Act when it fired an employee for carrying a hidden audio recorder into a meeting where the employee claimed he reasonably believed he would be denied rights guaranteed to him under the Act.  Surprisingly, the Board implied that any work rule prohibiting employees from making clandestine audio recordings in the workplace might be deemed unlawful, if the rule did not include an express exception for recordings made in an effort to protect or advance employee rights under Section 7.
In Hawaii Tribune-Herald, 356 NLRB No. 63 (2011), an employee made a clandestine audio recording of a meeting with his supervisor, after the supervisor refused to allow the employee to bring a union representative to the meeting.  The employee claimed he believed the meeting might result in discipline and that the company was violating his Weingarten rights by refusing to allow him to bring a witness to the meeting.  A union representative advised the employee to take detailed notes during the meeting, but, following discussions with coworkers, the employee decided instead to secretly tape record the meeting.  The employee borrowed a voice recorder from a coworker and concealed it in his pocket during the meeting.  At the meeting, the employee’s supervisor verbally warned him about low productivity.

Several days later, one of the employee’s coworkers notified the supervisor that the employee had secretly recorded the meeting.  The supervisor interviewed the employee who made the recording and several of the employees who had advised him to make the recording.  The supervisor referred to the decision to secretly record the meeting as “the biggest act of disloyalty he had ever seen.”  The supervisor suspended the employee who made the recording and the reporter who loaned the voice recorder to the employee.  The company later discharged the employee who made the recording.  A few days later, the newspaper’s publisher issued a blanket prohibition against the making of secret audio recordings.
The Board found that prior to the meeting with his supervisor, the discharged employee had discussed with his coworkers his belief that his employer was violating his Weingarten rights and had agreed with his coworkers upon the plan to secretly record the meeting.  The Board therefore concluded that the employee was engaged in protected concerted activity when he recorded the meeting.  The only question, the Board stated, was whether the employee’s conduct in making the recording was “sufficiently egregious to remove [him] from the protection of the Act.”  The Board noted that the employer had no pre-existing rule prohibiting employees from secretly recording others in the workplace and the employee’s conduct was not illegal under state law.  Under those circumstances, the Board concluded that the employee retained the protection of the Act, and his suspension and subsequent discharge were therefore unlawful.
In the “remedy” portion of its decision, the Board went on to state that the prohibition against the making of secret audio recordings was “overly broad,” and ordered the employer to both rescind the rule and notify its employees of the rescission.  The Board did not explain why employees would have a protected right under the Act to make “secret recordings” in the workplace.  The Administrative Law Judge apparently concluded that the rule prohibiting secret recordings was unlawful because it was promulgated in direct response to concerted activity.  Yet, the Board’s reliance on the fact that the employer did not have any preexisting rule against making such recordings suggests that, had such a rule been promulgated and consistently enforced in advance of the concerted activity at issue here, the preexisting rule could conceivably have been enforced without violating the Act.  The decision did not indicate how the Board would have ruled if the surreptitious recording had been in violation of state law, such as would have been the case had the conduct occurred in California, for example.
Employers considering the implications of the Hawaii Tribune-Herald decision should take two lessons from the case, one old and one fairly new.  First, in most cases, it is risky for employers to create a new rule to address union-related activity in the workplace.  Employers that encounter union organizing, misconduct by stewards, aggressive behavior by outside union representatives, or simple misconduct by union adherents are often in a better position when they apply existing work rules and company procedures – and rely in appropriate cases on remedies available in civil and criminal law.
Second, the Board has recently actively relied on the “overly broad rule” position.  General handbook rules of all types – including many rules thought either necessary or advisable to ensure compliance with anti-discrimination and anti-harassment statutes, as well as with the nascent anti-bullying agenda in some states – are coming under scrutiny from the Board for their potential “chilling” effect on employee exercise of Section 7 rights.  The Board’s willingness to suggest in its remedy analysis in this case that there may be a right under Section 7 for employees to make clandestine audio recordings in the workplace shows that a very broad reading of employee Section 7 rights, when coupled with the Board’s “overly broad rule” analysis, could jeopardize the validity of almost any kind of general rule of good conduct.