WomanPhoneImageIt is a safe bet that most if not all of your employees own a mobile or smart phone.  It is also a safe bet that those phones have the capability of capturing pictures, taking video and recording conversations.  That said, it is almost a certainty that one or more of your employees will use his or her phone to secretly record conduct or conversations in the workplace.  When that happens, can you lawfully discipline the employee?  Many times the answer is “yes,” particularly in a school setting and when there are clear policies or practices in place prohibiting such conduct.  Other times, however, the answer is not clear.  Rather, the answer depends on why the employee was making the recording and what law applies if an employee challenges the discipline as being unlawful.

An employee may decide to secretly record conversations in the workplace in order to gather evidence in support of a discrimination claim (under Title VII, the Americans with Disabilities Act, or the Age Discrimination in Employment Act) being investigated by the Equal Employment Opportunity Commission (“EEOC”).  While some courts have determine that this conduct is protected activity and therefore the employee cannot be disciplined for engaging in the activity, the majority of courts have held otherwise.  These courts have determined that an employer may lawfully discipline or terminate an employee for secretly recording a conversation in the workplace that violates the employer’s policy, even if it was for the purpose of gathering evidence to support a discrimination claim.

An employee may also decide to secretly, or not, record conduct or conversations in the workplace to build support for a union organizing campaign, or in furtherance of collective action protected by federal labor law.  While the National Labor Relations Board (“NLRB”) has yet to issue a ruling on this subject, the NLRB’s general counsel and the administrative law judges (“ALJ”)  for the NLRB have been very active in this area over the past two years, particularly in Connecticut.  The cases that have been decided, however, do not necessarily offer consistent guidance.  To be sure, in one case involving Whole Foods Market, the ALJ upheld a challenge to the company’s policy prohibiting employees from recording conversations with a recording device (including a phone or any electronic device) unless prior approval was received from the store or facility leadership.  In finding that the policy was lawful, the ALJ stated that no cases had been cited, nor found, in which the NLRB has found that making recordings of conversations in the workplace is a protected right.

Making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regulating employee conduct in its workplace.”

Additionally, the ALJ noted that the rule was only limited to making electronic recordings of conversations.  An employee “may present his/her contemporaneous, verbatim, written record of his/her conversation with the other party, and his/her own testimony concerning employment-related matters.”

The second case involved the Professional Electrical Contractors of Connecticut.  In that case, the ALJ ruled that several employee handbook rules maintained by Professional Electrical Contractors of Connecticut Inc., including bans on “boisterous” activities and workplace photos, ran afoul of the National Labor Relations Act. The handbook contained a series of rules barring workers from taking pictures or making recordings at the workplace without management’s prior approval. The company’s policy covered still pictures, video and sound recordings both on and off the employer’s premises. It specifically stated: “Except as otherwise provided for in this policy, no associate may photograph, tape, or otherwise record any person, document, conversations, communication, or activity that in any way involves PEC or associates of PEC, any customers or any other individual with whom PEC is doing business or intending to do business in any capacity (for example, vendors, suppliers, consultants, attorneys or independent contractors). The authorized copying of documents in the ordinary course of business for the benefit of PEC is not prohibited by this policy. Use of company voicemail, and saving messages thereon, whether on company phones or company cell phones, is not prohibited by this policy.”

In issuing his ruling, the ALJ stated, “[t]here is, in my opinion, a legitimate conflict of principles regarding this set of rules which will require Board and Appellate Court clarification.”  Nevertheless, “in this case, however, I am going to come down on the side of the General Counsel and conclude that this set of rules, except to the extent that a customer explicitly prohibits photographing or videotaping on its premises, is too broad and is therefore a violation.”  This is certainly an area that you will want to pay attention to in the coming months.

While the NLRB does not have jurisdiction over public entities, such as public schools, colleges and universities, the NLRB has expanded its reach with respect to private sector educational institutions, including exercising jurisdiction over a private, nonprofit corporation that operates a public charter school, and certain faculty employed by religiously affiliated colleges and universities.  Further, public schools and universities should be aware of these rulings and the NLRB’s position on recordings in the workplace because Connecticut’s State Board of Labor Relations often looks to the federal law for guidance in interpreting and applying the state’s labor laws.

Finally, an employee may also decide to secretly record conduct or conversations in the workplace to gather evidence of workplace safety issues.  In this case, the administrative review board for the Occupational Safety and Health Administration, which investigates violations of numerous whistleblower laws protecting employees who report violations of workplace safety, has taken an expansive view of protected activity and determined that employees who record conduct or conversations at work in a good faith effort to gather evidence of employer violations have engaged in protected activity.  It would therefore be considered retaliation for an employer to discipline an employee for making such recordings.

It should be noted that Connecticut is a two-party consent state.  This means that it is unlawful under state law for an employee to record another individual without that individual’s knowledge of or consent to the recording.  That said, the federal laws discussed above would likely preempt the state law in this area, particularly where it is clear that the recordings made by the employee are protected activity, such as recording workplace safety issues.

As this area of law appears to be unsettled in many ways, we recommend that you review your current policies and practices in this area to ensure that any prohibitions are narrowly tailored and do not prohibit clear protected activity.