NLRB Rules in Favor of Worker Who Violated Federal and State Law when Recording Conversations

Last month a company terminated two employees who secretly recorded conversations with management.

Surreptitiously recording conversations was both a felony for violating state law and cause for discipline up to and including termination for violating corporate policy.

But that didn’t stop the NLRB from finding in favor of the employees and awarding them reinstatement with backpay.

Per the NLRB, a employer cannot enforce a rule banning secret recordings if employees are using their phones to further group interests or help form a union.

The Board said, “in many instances, workplace recordings, often covert, have been an essential element in vindicating employees’ Section 7 rights.”

Notably, the NLRB also said that the state law prohibiting secretly recording conversations cannot be used against employees.

Basically, federal law trumps state law. And since the National Labor Relations Act is federal law, state law be damned.

I think the following states require consent of all parties to a conversation before it can be recorded: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

If you’re in one of those states, the NLRB just overruled your state law.

Same for companies that have no recording policies regardless of state. Employees may now secretly record management if the conversation could potentially touch on Section 7 rights (which is currently pretty much anything having to do with work).

I’m reminded of this rule of thumb: Live your life as if everything you say or do will be front page news.