The National Labor Relations Board (NLRB) recently issued two memoranda clarifying the agency’s position on surreptitious recordings made by employees in the workplace, and during collective bargaining sessions. The memoranda address the general treatment of secret recordings under the National Labor Relations Act (NLRA).  

The NLRB has long held that overly broad workplace policies that categorically prohibit recordings are likely unlawful under the NLRA. Generally, employees are typically permitted to make audio or video recordings while engaging in Section 7 activity, such as documenting workplace concerns or potential retaliation. However, these protections are not absolute.  

An employee may lose protection under the NLRA if their conduct surrounding the recording is deemed egregious. Factors that may strip an employee’s actions of NLRA protection include: 

• Violation of state law or explicit employer policies prohibiting unauthorized recordings (See below). 

• Recordings that target coworkers (as opposed to supervisors or managers), thereby implicating the privacy and rights of other employees. 

• Conduct deemed “egregious” or grossly inappropriate under the circumstances. 

Regarding collective bargaining, the memoranda concludes that the surreptitious recording of bargaining sessions constitutes a per se violation of the duty to bargain in good faith under Section 8 of the NLRA, regardless of the party’s intent or other circumstances. This position is grounded in the longstanding NLRB precedent that the insistence on recording negotiations is a permissive, but not mandatory, subject of bargaining that may not be used to stifle the bargaining process. 

As noted above, employers must also take into consideration state law restrictions when it comes to allowing or limiting surreptitious recording.  

For example, California is a two-party consent state, meaning it is a criminal offense to use any device to record communications, whether they are wire, oral, or electronic, without the consent of everyone involved in the conversation. In contrast, Arizona is a one-party consent state. This means that it is legal to record a conversation as long as one party involved in the conversation consents to the recording. This applies to wire, oral, and electronic communications. However, recording in Arizona workplaces is not allowed if there is a reasonable expectation of privacy, such as in private places like bathrooms or locker rooms. 

In summary, while employees may engage in protected activity by making recordings, there are significant limitations, especially when it comes to violating state laws, employer policies, the privacy rights of coworkers and collective bargaining. Employers should ensure their current privacy-related policies and procedures reflect the NLRB’s updated guidance on the general treatment of secret recordings under the NLRA and applicable state laws.