On September 28, 2015, the U.S. Department of Labor Administrative Review Board (“ARB”) held that the recording of workplace conversations can be protected whistleblower activity under the Energy Reorganization Act of 1974 (“ERA”). Franchini v. Argonne National Laboratory, ARB Case No. 13-081 (Sep. 28, 2015).
The Claimant made several safety complaints both to management and to the Department of Energy (“DOE”). Throughout his employment, he took pictures and recorded approximately 50 conversations with coworkers and management personnel, often without their knowledge or consent, which in some instances involved workplace concerns. According to the Claimant, he recorded these conversations and took those pictures because he “anticipated seeking resolution of the problems he had identified ‘outside the Lab.’” Slip Op. at 4. In a meeting with management, Claimant admitted to recording co-workers without their consent and was directed to produce the recordings. When the Claimant produced some, but not all of the recordings, he was terminated for insubordination. Notably, the employer did not have a written policy expressly prohibiting the taping of conversations, and the Employee Conduct Policy’s definition of insubordination did not define the term or expressly discuss audio recordings.
Reversing the ALJ’s grant of the employer’s motion for summary judgment, the ARB held that the Claimant’s recordings constituted protected activity because they were purportedly made to address Claimant’s workplace concerns. In addition, the ARB held that even if the Claimant’s refusal to turn over his tapes was a true reason for his discharge, that did “not rule out protected activity as a contributing factor in the termination of his employment.” Id. at 18. In so ruling, the ARB also noted that the Claimant’s conduct arguably suggested that he attempted to comply with the employer’s directive, creating an issue of fact.
Though troubling to management, the ARB’s decision is perhaps unsurprising because it previously held in Benjamin v. Citationshares Management LLC, ARB Case No. 12-029 (Nov. 5, 2013) that an employee’s attempt to secretly record a meeting constituted protected activity under AIR 21 because he was attempting “to provide information of retaliation that violates [Act].” Nevertheless, the ARB’s embrace of surreptitious recordings as the foundation for projected activity is at odds with some court decisions arising in other (but analogous) contexts, including a recent decision out of the Second Circuit. See Desardouin v. Rochester, 708 F.3d 102 (2d Cir. Feb. 19, 2013) (affirming grant of summary judgment on Title VII retaliation claim in favor of employer because Defendant proffered a legitimate reason for terminating Plaintiff (i.e. making “secret recordings of conversations of police officials,”) which was a felony and a violation of departmental policy).
It remains to be seen whether courts will similarly view secret recordings as conduct protected by anti-retaliation statutes. Notably though, employers who have promulgated policies prohibiting secret recordings may be able to distinguish this decision and establish a viable defense to liability because the ARB, inGalinsky v. BOA, No. 11-057 (ARB Oct. 31, 2012), affirmed the dismissal of a SOX whistleblower retaliation claim on the grounds that the employee’s secret tape recording and downloading of company data violated the company’s employee handbook.