In a recent decision, the National Labor Relations Board (NLRB) reinforced that an employer’s privacy policy which prohibited employees from recording conversations in the workplace was not an unfair labor practice. In that case, the employer maintained a workplace privacy policy that, in part, prohibited employees from recording telephone or other conversations they have with their coworkers, managers, or other third parties unless such recordings are approved in advance by the employer’s legal department, required by the needs of the business, and fully comply with the law and any applicable company policy.

The employee at issue served as a union steward and accompanied a coworker (who had asked for his help in filing a grievance against the employer) to a meeting with the employer, at which the coworker was terminated. The union steward employee recorded his coworker’s termination meeting on his cell phone. The manager who terminated the coworker suspected that the union steward had recorded the conversation. Afterwards, the union steward’s supervisors deleted the recording from his cell phone and administered a coaching, telling him that recording conversations was against company policy and threatening to hold him “accountable” (read: discipline him) for future violations.

Despite the employee’s challenge, the NLRB found that similar no-camera or no-recording rules as a type of employer restrictions are lawful because they have a comparatively slight impact on employees’ protected rights. Though such rules may prevent recording of some protected conversations, the vast majority of conversations covered by such policies bear no relation to protected Section 7 activity. And, in fact, employees remain free to actually discuss working conditions or other protected topics, but they just can’t record those conversations. In comparison, many employers have strong business justifications for maintaining these privacy policies that outweigh employees’ Section 7 rights (and this employer, in particular, had a duty under federal law to safeguard customer information and communications).

But the details of this case still made the employer’s conduct unlawful. The more specific question was whether the employee was engaged in protected activity when he made the recording and, if so, whether the employer improperly applied the no-recording rule when it threatened him with being “held accountable” for violating that rule. Here, it was clear the employee was acting in his capacity as union steward when he attended and recorded the termination meeting (as the employee had asked for assistance in filing a grievance even before he was actually fired), and the employer did not dispute that no private customer information was disclosed at any time during the meeting.

For these reasons, the NLRB concluded that the employee was engaged in protected union activity when he recorded his coworker’s termination meeting (even though his act of recording violated a lawful workplace rule). Because the employee was engaged in protected activity, the employer unlawfully applied the no-recording policy; the supervisor’s application of the rule amounted to a threat that some unspecified adverse action would be taken against the employee if he were to engage in protected union recording activity again.

Bottom line: the no-recording rule itself (and similar workplace privacy rules) are generally lawful; however, an employer can still apply them in an unlawful manner in a given situation. That decision remains dependent on the specific facts and circumstances involved, and must be made on a case-by-case basis.

By Rebecca D. Bullard, rbullard@dsda.com