The Eavesdropping Employer:
st
A 21 Century Framework for
Employee Monitoring
P R E S E N T E D B Y:
M O D E R AT O R : A N I TA K H U S H A L A N I ( S A B A L A B O R & E M P L O Y M E N T C O M M I T T E E C H A I R )
PA N K I T D O S H I , PA R T N E R @ S H E P PA R D M U L L I N
JOLSNA JOHN, HOUSE COUNSEL @ IUOE LOCAL 3
P U N A M K A J I , A S S O C I AT E @ H AY N E S B O O N E
Agenda
Overview of the Act and Background
Latest NLRB Rulings (Whole Foods Market &
T-Mobile)
Federal & State Laws
Scenarios
Practical Tips
Q&A
National Labor Relations Act (NLRA)
The NLRA is governed and administrated by the National Labor Relations Board (NLRB).
The Act specifically defines the protections for protected concerted activity.
The Act applies to both union and non-union private sector work environments throughout the
United States of America.
Many state public employee relations boards which are tasked with the governance of these
same rights for public employees (state, county, municipal, special districts, etc) also follow the
precedent set by the NLRB in their rulemaking, case law, & guidance memos.
Protected Concerted Activity: Defined
Employees shall have the right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection…
-Section 7
How did we get here?
REVIEW OF THE HISTORICAL CASES THAT ESTABLISHED PROTECTED
CONCERTED ACTIVITY
Atlantic Steel Company
Board’s Analysis
Four-part test to evaluate whether an employee loses protection of the Act:
(1) the place of the discussion;
(2) the subject matter of the
discussion;
(3) the nature of the employee’s
outburst; and
(4) whether the outburst was, in
any way, provoked by an
employer’s unfair labor practice
Conclusion: Discharge Upheld
“Indeed, a contrary result in this case would mean that any employee’s offhand complaint would be protected activity which would shield any obscene
insubordination short of physical violence. That result would be inconsistent with the Act.”
Wright Line
251 NLRB 1083 (1980)
Facts:
◦ Employee falsifies timesheet by charging time to a job while he was
actually in the bathroom reading a newspaper
◦ Employee performed the work, but not during the reported time
◦
◦
◦
◦
Supervisors refer to employee as the “union kingpin”
Employer terminates for falsification of company records
Other (still employed) employees recorded similar discrepancies
Employees previously terminated for falsification of company records
engaged in embezzlement and forgery
Result: Employer terminates union kingpin
Wright Line
Board’s Analysis
Two-part burden-shifting test to evaluate causation:
Part 1: Employee must establish prima facie
case showing
protected conduct was a “motivating factor”
in the
employer’s decision
Part 2: Burden shifts and employer must
demonstrate
that it would have taken the same action
absent the
protected conduct
Conclusion: Union activity was a motivating factor
Other employees recorded similar discrepancies on timesheets, but
were not known union supporters, and were not discharged
Modern World: Handbooks & Social
Media
To guide employers and employees in understanding the protections of the NLRA with the
advancements in technology and social media for communications, NLRB General Counsel
issued a guidance memorandum. This should serve as your basis for trying to determine what is
and is not protected concerted activity.
Review of Whole Foods
& T-Mobile
TWO RECENT RULINGS BY THE NLRB REGARDING WORKPLACE
RECORDINGS
NLRB Ruling: Whole Foods Market Group,
Inc., 363 NLRB No. 87 (2015)
Two rules at issue:
1.
Ban on recording company meetings without prior approval from management or the
consent of other parties.
2.
Ban on recording any conversations [with each other] without prior management approval.
Company’s Rationale:
Promote a free exchange of ideas and an atmosphere of trust
Allowing employees to record conversations in secret would have “a chilling effect on the
expression of views” if an employee is concerned about being recorded.
NLRB Ruling in Whole Foods
The Whole Foods rule violated employees’ rights to engage in protected concerted activity.
NLRB further stated that Whole Foods’ stated rationale did not override employees’ rights under the
NLRA.
Examples of protected activity:
 Recording images of protected picketing
 Documenting unsafe workplace equipment or hazardous working conditions
 Documenting and publicizing discussions about terms and conditions of employment
 Documenting inconsistent application of employer rules
 Recording evidence to preserve it for later use in administrative or judicial forums in employmentrelated actions
NLRB Ruling: T-Mobile USA, Inc., 363
NLRB No. 171 (4/29/16)
Employee rule required employees to maintain a “positive work
environment” and prohibited them from recording people or
confidential information in the workplace.
NLRB: both provisions are overbroad and interfered with employee
rights under the NLRA.
Don’t forget about Federal & State
Wiretapping Laws
Scenario 1
Employee asks to record a performance review meeting and the manager asks HR/counsel how
to respond. How do you advise in this case? Does it make a difference if the employee is a high
level employee?
The manager refuses request from employee based on state law requiring dual consent. Can the
manager refuse to be recorded in this case?
Scenario 2
Employee photographs what s/he considers are safety hazards in the workplace. Management
doesn’t believe the photographs show any such hazards and thinks the employee is using the
photos as leverage to avoid being written up for a performance issue. Can the employee be
disciplined?
Scenario 3
Employee records a confidential interview that is a part of a sexual harassment investigation and
informs HR that she considers it evidence in a potential lawsuit against the company. Can the
employee be disciplined for breaching the confidentiality of the company’s internal
investigations?
What if HR records the interview? Is the employee entitled to a copy of the recording?
Policy Review
Employer Policies should include the following elements:

Be narrowly tailored to prohibit recording of information that is not protected by the NLRA,
such as confidential customer or patient information or trade secrets.
 Specify that recordings meant as jokes or to harass other employees are unprotected by the
NLRA.

Any ban should also be limited to work time, place and situations where maintaining
confidentiality is necessary to the employer’s legitimate business interests.
 Specify the business justification for the ban on recording and that the ban is not intended to
infringe upon an employee’s protected rights.
 Employers operating in states with dual consent laws should reference the state law in the
policy.
Questions?