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.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Photo of Richard I. Greenberg Richard I. Greenberg

Richard Greenberg, a Principal in New York City office of Jackson Lewis P.C., is admitted to the bar of the State of New York and the Federal District Court for the Southern District of New York. Mr. Greenberg graduated from Cornell University’s…

Richard Greenberg, a Principal in New York City office of Jackson Lewis P.C., is admitted to the bar of the State of New York and the Federal District Court for the Southern District of New York. Mr. Greenberg graduated from Cornell University’s School of Industrial and Labor Relations in 1992 and earned a Juris Doctor degree from Brooklyn Law School in 1995.

He advises both unionized and union-free clients on a full-range of labor and employee relations matters. With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free. With respect to employee relations matters, Mr. Greenberg has extensive experience assisting clients in numerous industries with the development and maintenance of personnel policies and personnel infrastructures. In this regard, Mr. Greenberg often works on these issues with clients as business needs and culture change as a result of business transactions, such as mergers and acquisitions.

Mr. Greenberg regularly advises clients on compliance with the myriad of federal and state employment laws, including the FMLA, FLSA, ADA, ADEA and WARN, as well as new legal developments impacting labor and employment policies and practices.