Recently, Omarosa Manigault Newman (known to many of us as simply “Omarosa”), a former White House aide and protégé of President Donald Trump, released a secret recording that allegedly proved she was offered a cushy job paying $15,000 a month in exchange for her silence about her White House tenure. Omarosa also claims to have hours of other interesting and potentially embarrassing tidbits on tape. With the proliferation of the #MeToo movement, many employees are now covertly recording their supervisors and others at work. What does that mean for employers? Can you prohibit clandestine recordings? You should understand your exposure in this situation and what types of “no-recording” policies will be upheld by the courts.
Assume Nothing Is Confidential
Recording conversations with people, including coworkers, isn’t something new—it just became a lot more common with the dawning of the cell phone. Employees are now able to record workplace conversations with a single swipe on their smartphone, without the other party even knowing he is being recorded. It’s fairly common for an employee to record a workplace incident in order to have evidence to support a pending or future claim against her employer. In New York, unlike some other states, it’s lawful to record a person without his consent.
Unfortunately, that means you should treat each meeting, phone call, or conference with an employee—however private it may seem—as if it’s being recorded. Develop a script before meeting with an employee about any sensitive HR issues, including evaluations, counseling, discipline, and termination. More important, stay “on script” during the meeting, and avoid ad-libbing or making any off-the-cuff remarks, which can be taken out of context. That’s especially true if the employee is trying to make a scene or bait you into making unfortunate remarks. If you suspect that might happen, consider having another employee or supervisor witness the meeting.
Understanding ‘Protected Concerted Activities’
To craft and enforce lawful policies, including a policy limiting workplace recording, you must understand what types of employee speech and actions will be protected under federal and state employment laws. Section 7 of the National Labor Relations Act (NLRA) gives employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the Act makes it an unfair labor practice “for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7. The NLRA applies regardless of whether a company is unionized.
Under the NLRA, employees may take certain actions—alone or in conjunction with others—that are intended to help improve the terms and conditions of their employment (e.g., collecting and sharing evidence that their boss is a harasser or a racist). An employer that restrains or interferes with that right may be found to have committed an unfair labor practice under the NLRA. State laws, including the New York State Human Rights Law (NYSHRL), may extend similar protections to employees who engage in protected activity, such as making or assisting a coworker with a discrimination or retaliation claim under the NYSHRL.
In June, the General Counsel of the National Labor Relations Board (NLRB) issued a memorandum providing detailed guidance on the validity of employer rules, policies, and handbooks. The NLRB will now consider whether an apparently neutral rule, when reasonably interpreted, would interfere with an employee’s Section 7 rights. If so, the NLRB will try to balance the nature and extent of the rule’s potential impact on an employee’s NLRA rights against the employer’s legitimate justifications for the rule. Unlike the NLRB under the Obama administration, the Board under the Trump administration will no longer invalidate an employer policy, such as a ban on workplace recording, simply because the rule “might” chill, or dissuade, an employee from exercising his Section 7 rights.
The General Counsel’s memorandum organizes employer rules into three categories:
- Category 1 rules will be deemed lawful because they do not restrict employee rights under the NLRA or because the employer’s justifications for them outweigh their tendency to restrict employee rights. Rules in this category are presumptively lawful and enforceable.
- Category 2 rules will warrant individualized consideration of whether they prohibit or interfere with employee rights under the NLRA and, if so, whether their impact is outweighed by legitimate considerations. These rules are subject to additional scrutiny under the balancing test.
- Category 3 rules will be deemed unlawful because they restrict rights protected by the NLRA in a way that outweighs any justifications associated with them. Rules in this category are presumptively unlawful and unenforceable.
Is Workplace Recording Protected?
Citing valid security, proprietary, confidentiality, business, and operational concerns, the General Counsel’s memorandum classifies the following “no-recording” policies as Category 1 rules that are presumptively lawful and enforceable:
- Employees may not record conversations, phone calls, images, or company meetings with any recording device without prior approval.
- Employees may not record telephone or other conversations that they have with their coworkers, managers, or third parties unless such recordings are approved in advance.
The NLRB guidance is important, and employers that adopt no-recording policies containing language identical to the examples above can expect their policies to be found lawful and enforceable. However, the General Counsel’s guidance also cautions that the analysis of a policy may be fact-specific. Moreover, despite the NLRB’s position, the New York State Division of Human Rights (NYSDHR) may find an employer’s disciplinary actions against an employee who records and offers evidence of discrimination are retaliatory, subjecting the employer to civil liability.
While the new NLRB guidance allows employers to lawfully prohibit workplace recordings as a matter of company policy, there’s really nothing to stop an employee from using damaging recordings against her employer. Accordingly, you should still be careful about what you say to employees and assume your conversations are being recorded. Similarly, disciplining an employee who has recorded evidence of unlawful discrimination—even if the recording violated a valid and enforceable company policy—is fraught with danger and potentially illegal, given the obvious concerns about retaliation. Consult with employment counsel about how to handle workplace recordings and ensure your policies are consistent with the latest NLRB guidance.