Continuing its crusade to remake U.S. labor law, the NLRB recently upheld an employee’s secret recording of a disciplinary meeting. In Stephens Media, LLC, 356 NLRB No. 63 (Feb. 14, 2011), the Board held that the employer violated the National Labor Relations Act by discharging an employee for secretly recording a meeting at which he was issued a disciplinary warning for failing to meet a production quota. The Board found that the employee’s conduct was “protected” because he had been denied the right to a union representative at the meeting and that it was “concerted” because he discussed his plan with co-workers before implementing it. Significantly, the Board did not find that the employee was actually entitled to a union representative at the meeting. However, the Board did note that the employer had no policy against secret records of disciplinary meetings.Continuing its crusade to remake U.S. labor law, the NLRB recently upheld an employee’s secret recording of a disciplinary meeting. In Stephens Media, LLC, 356 NLRB No. 63 (Feb. 14, 2011), the Board held that the employer violated the National Labor Relations Act by discharging an employee for secretly recording a meeting at which he was issued a disciplinary warning for failing to meet a production quota. The Board found that the employee’s conduct was “protected” because he had been denied the right to a union representative at the meeting and that it was “concerted” because he discussed his plan with co-workers before implementing it. Significantly, the Board did not find that the employee was actually entitled to a union representative at the meeting. However, the Board did note that the employer had no policy against secret records of disciplinary meetings.

Employers who wish to bar secret workplace recordings should adopt a clear policy banning such conduct. In addition, unionized employers should proceed with caution against an employee who secretly records a meeting after having been denied a union representative.