Employers are facing the conundrum of how to deal with workplace recordings. Some states require two-party consent for any recordings, rendering surreptitious recordings illegal. But until recently, the National Labor Relations Board (NLRB) found such illegal recordings to be protected by – and usable under – the National Labor Relations Act, which, by the way, applies to both unionized and non-unionized employers. But where are we now?

Although the Obama NLRB deemed most instances of surreptitious tape recordings by employees of workplace conversations to be protected concerted activity (PCA) even though unlawful under the law of a State, the more conservative Trump NLRB has now recalibrated this position. This does not mean that illegal under State law = unprotected under the National Labor Relations Act. Instead, the question under the current approach is whether the surreptitious recording is justified in the context of the activity at issue (i.e. is the individual engaged in conduct that furthers the purposes of the NLRA, like recording unsafe workplace conditions or recording an unlawful interrogation by management about union activity), such that the illegality of the taping should be outweighed by the justification that it is PCA under the NLRA.

In Boeing Co., which we discussed in a December 15, 2017 E-lert, the NLRB issued an opinion in which it rejected its prior approach to handbook rules and developed a new approach, in which rules were assigned to three categories: (1) Rules that are generally lawful, (2) Rules that warrant individualized scrutiny, and (3) Rules that are unlawful. In that decision, the Board specifically found an employer’s no-recording rule to fall into the first category. This position was reiterated in the NLRB General Counsel’s “Guidance on Handbook Rules Post-Boeing,” as we discussed in our June 8, 2018 E-lert. In addition, two Advice Memoranda from the NLRB General Counsel (GC) are helpful with regard to this issue. (Advice Memos respond to requests for guidance submitted by Regional Directors trying to decide whether a case raises a question of unfair labor practices.)

The first GC memo addresses whether an employer violated the NLRA by refusing a union rep’s request to tape record investigatory interviews and other meetings involving a certain manager for use in grievances. The GC concluded that the employer’s refusal was proper. The GC explained that NLRB precedent recognizes that open and unhampered communications between the union and management are critical to the bargaining relationship. Where the purpose of the meetings concerns a subject that is a core part of that relationship (such as collective bargaining sessions and grievance meetings), recording will undermine the core objective of open and free discussion. Hence, refusing to permit the recording of such meeting is proper. By extension, the surreptitious taping of such meetings is equally (if not more) corrosive of the bargaining relationship and should not be protected by the NLRA.

The second GC memo concerns surreptitious taping of a meeting by an employee in violation of a company policy prohibiting such tapings, and provides a good overview of the revised NLRB position on this issue. In particular, it highlights a nuance that should not be overlooked. Because such rules are presumed to be lawful, in order to be found unlawful, there must be a specific showing that the rule was applied in a way that violates the protections of the NLRA. In this case, the employee who surreptitiously recorded a meeting was unprotected because he (1) lied about having done it and (2) was not engaged in PCA. The General Counsel makes a point of distinguishing the situation where the secret taping is done in connection with actions that constitute PCA, meaning that such conduct still may be protected even though it violates an employer policy or state law.

Bottom line, employers can now enact policies that generally prohibit recording in the workplace, but you must ensure that in applying the policy, you do not prevent employees from engaging in PCA. This is the case even if non-consensual recordings are illegal under state law.