Will the Second Circuit Overturn the NLRB’s Surreptitious Workplace Recordings Ruling by Giving Employers a Road Map to Compliance?

Remember last year when the NLRB ruled that Whole Foods’ policy that prohibited recordings without proper authorization or the consent of the parties being recorded, was unlawful? As a reminder, Whole Foods said the purpose of the policy was to encourage open communication and to eliminate the “chilling effect” on the expression of views that may exists when an employee is concerned that his or her conversation is being secretly recorded. Conversely, the NLRB ruled that such policies have a “chilling effect” on an employee’s exercise of Section 7 rights. The Board went on to characterize covert (surreptitious) recordings as an essential element in vindicating Section 7 rights, thereby condoning and protecting that type of behavior.

Whole Foods appealed the decision to the Second Circuit. During oral argument, the judicial panel recommended adding a disclaimer to the policy that would alert employees that the policies were not intended to prohibit the recording of activities or conversations that fall within the ambit of Section 7 of the Act. Ironically, this is the precise language that management has proposed to add to several handbook policies that the Board has found unlawful. The Board has rejected the proposal every time. Could the Second Circuit finally give employers what they want by finding that disclaimer language would make an otherwise (NLRB interpreted) unlawful handbook policy lawful? Whatever the decision holds, it could have a tremendous impact on all employers, good or bad.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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