Would you try to stop an employee from recording workplace conversations? And if you did – would you risk running afoul of the law?
That question was recently addressed by the 2nd Circuit Court of Appeals in a case involving Whole Foods.
Whole Foods had a policy prohibiting employees from recording conversations by tape recorder or other devices unless prior approval was received.
Employees unhappy with the rule, challenged it before the National Labor Relations Board (NLRB) in 2015.
The basis of their challenge?
The National Labor Relations Act gives employees certain rights that cannot be taken from them by employers. Those protected rights include the right to communicate with one another for the purposes of organizing a labor union or engaging in what are called concerted activities.
The NLRB ruled in 2015 that with this rule, Whole Foods was in fact impinging on the rights of employees to participate in a protected activity.
Whole Foods appealed the ruling to the 2nd Circuit Court. That court has just decided the matter in favor of the plaintiffs.
In their decision, the judges found that in fact the Whole Foods ban was overly broad and that the recording policy in force at the time could lead employees to reasonably assume NLRA protected activities were in fact being prohibited.
In the decision, the Court ruled that the ban would have to be rescinded or revised – leaving open the opportunity for employers to draft recording rules that accommodate the rights of employees.
If you’re an employer with questions about labor and employment laws, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.
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