Where no law or employer policy prohibits a worker from recording a conversation with his manager, an employer’s termination of that worker for recording the conversation unlawfully infringed on the worker’s rights under the National Labor Relations Act, the federal appeals court in Washington D.C. has ruled.

According to the U.S. Court of Appeals for the District of Columbia Circuit, in Stephens Media LLC v. NLRB, when the employer denied what the employee believed was his right guaranteed under the Supreme Court’s Weingarten decision to have a witness at a meeting with a supervisor, he conferred with co-workers and decided to secretly record the meeting with his supervisor. The employee used a voice recorder belonging to one of his co-workers to surreptitiously record the meeting. After learning of the taping, the company terminated the employee who taped the meeting and suspended the employee who provided the recorder.

The National Labor Relations Board found these employees were engaged in protected concerted activity under the NLRA when they planned to record the meeting and that by disciplining the employees, the company violated their right to engage in such activity. According to the Board, taping the meeting to document what the employees perceived to be a potential violation of Weingarten qualified as protected activity.

In rejecting the employer’s arguments that this was not protected activity, the Board reasoned:

  1. under established Board precedent, there is no per se rule that the making of surreptitious recordings is unprotected activity;
  2. the company had no policy in effect prohibiting audio recordings; and
  3. the recording was not unlawful under state or local law. See HAW. REV. STAT. § 803-42(b)(4).

The federal appeals court agreed. An unanswered question is whether the presence of an employer policy would have resulted in a different outcome.