In this episode of The Proskauer Brief, partners Harris Mufson and Howard Robbins conduct the first part in a series of podcasts entitled, “Can My Employees Do That?” In this installment, Harris and Howard discuss workplace recordings and monitoring workplace emails. Please tune in to hear timely insight regarding these key employment issues.
Harris Mufson: Hello and welcome to the Proskauer Brief, “Hot Topics on Labor and Employment Law.” I am Harris Mufson and today I am joined by Howard Robbins, and on today's episode we are going to start the first in a series of podcasts entitled, “Can My Employees Do That?” The question that employers often ask is “Can my employees record me or either by video or audio? Can they record what's going on in the workplace?
Howard Robbins: We do get that a lot and you see that in a lot of employment cases that we handle, discrimination cases where people have been recording managers, sometimes coworkers — all kinds of circumstances. The answer here is that, as of the end of last year, now you generally can prohibit employees from recording in the workplace. And that's a shift that happened with, frankly, with the change in administration, in the case decided, the Boeing case, at the end of last year. And that reversed the case that got a lot of press attention concerning the Whole Foods company which had a policy that was very detailed and thoughtful about why they wanted to maintain employee privacy, and not to chill expression in the workplace and concerns about trade secrets, and the prior composition of the National Labor Relations Board found that was an unlawful policy because it could have been interpreted to prevent employees from exercising their rights under Federal Labor Law.
And now with the Boeing case, the new rule is a more a nuanced balancing test that considers the impact of a rule, and this being one of those sorts of rules, and the impact it’s got on employees’ rights and the balancing business justification against it. And the short answer is, generally you can prohibit employees from recording in the workplace, either audio or video. I want to say that people should understand that there are some state laws that vary as to whether you are allowed to record a conversation on the telephone, particular or even without a telephone, without the consent of the other party.
Harris Mufson: Right, that depends on whether or not the state is a one-party consent or two-party consent state. So for example, New York is a one-party consent state.
Howard Robbins: Right.
Harris Mufson: But the law does differ state by state.
Howard Robbins: Yes. I think Massachusetts is a two-party consent state, and you get complicated issues about if somebody is in one state talking to somebody else on the phone, but that's not really the issue here. This is about what's happening in the workplace and with the increasing availability of smartphones and the lower costs of those things, and their decreasing size with the advance in technology, and the improved picture quality, employers become, you know, reasonably, increasingly concerned about what's being recorded, both audio of each other and video. And so the basic rule that exists now is you can prohibit recording in the workplace, audio or video, as long as you leave a little bit of escape-valve room for circumstances where an employee might want to exercise those rights under Federal Labor Law. And the General Counsel of the National Labor Relations Board, has been helpful in this by issuing a memo in June of 2018, and the General Counsel sometimes does this, issuing memos that are guidance to the local offices of the NLRB, but also employers and their counsel and unions also look to these for guidance.
Harris Mufson: Describe particular rules that as examples would be deemed lawful.
Howard Robbins: So two examples that the General Counsel gave are: It would be okay to say that employees may not record conversations, phone calls, images or company meetings with any recording device without prior approval. Another example is that employees may not record telephone or other conversations with coworkers, managers or third parties unless such recordings are approved in advance. Now, it sure seems unlikely, I must to say, that someone who wants to engage in union activity would feel comfortable going to an employer and saying, "Hope you don't mind if I record this, that and the other thing that’s designed to be for the purpose of mutual aid and protection to keep you from putting you foot on my neck, but understanding that still if you’re devising a rule it's better to leave that kind of theoretical room. And the NLRB which has obviously shifted hard in the other direction with the new administration acknowledges in this memo that the General Counsel does that no recording rules "may occasionally chill employees" from recording their protected concerted activities or their working conditions, but said, look it may also encourage open communication and exchange of ideas. I’m sure we all have different views about the righteousness of that or not, but I’ll just say that is what the rule is.
Harris Mufson: So I think at the end of the day, it really is an assessment of whether or not the anti-recording policy as drafted would comply with the memorandum that was issued by the General Counsel and the issue there, right, is whether or not that the policy will infringe on Section 7 Rights under the National Relations Act, and then separately there should be also another analysis about whether or not the state at issue is a one‑party consent state or a two-party consent state. That may also play into the analysis.
Howard Robbins: That’s right, and it's the policy on its face as opposed to how somebody might construe it. You know, one thing that people talk a lot about with the National Labor Relations Board is the unfortunate reality that it’s a politically appointed body that whichever party’s in control, appoints three of the five members. And what you get over time is a pendulum swinging back and forth on a lot of different policies and rules, and so it becomes very frustrating sometimes to have predictability around these things. But, I guess you would say for the time being, the policy under the Whole Foods case which was the so-called Lutheran Heritage Standard; that’s been reversed. How long this new set of affairs will last? Hard to know.
Harris Mufson: Okay, now let's talk about another question which is often on employers’ minds. Can an employee use company-issued email for nonbusiness purposes?
Howard Robbins: Right.
Harris Mufson: What does the law say about that?
Howard Robbins: So I am going to put this in the same bucket as a rule that goes back and forth and indeed seems teed up to be changed in the near future. So let me describe the current state of affairs and what to expect going forward. Today, under a decision decided in 2014 called the Purple Communications case, the National Labor Relations Board overruled the case that had been decided about seven years earlier. And in that case decided that employees actually have a presumptive right to use their employer's email system to engage in activities that are protected under Federal Labor Law. We refer to those as Section 7 Rights because that's how its’ denominated or numbered in the National Labor Relations Act. And so what that means is that employees who want to engage in union activity using email, that is communicating with each other about various union activities, whether it's grievances or getting together to talk about contract negotiations — whatever it might be.
If they already are people who have access to company emails as part of their job, an employer cannot prevent them today, cannot prevent them from using the email system to engage in that activity. Now, there are reasonable restrictions that an employer can lay down. You can't do it except for it being on non-work time, you can't use paid time for union activities that isn't actually part of your job, of course. There can be restrictions on things that would gum up the employer's computer system; you know, huge attachments with video and stuff like that and other things that are necessary to maintain production and discipline. We all may have different views about what that is, but that's the terminology that's used. That's the current state of affairs. I should say, though, that the NLRB has made it very clear that they intend to revisit that.
In August of this year, the National Labor Relations Board actually invited the filing of briefs by people unrelated to the parties in the Caesar's Entertainment case, about whether the National Labor Relations Board should adhere to that Purple Communications case. And, of course, that sort of invitation gives you some sense of where they’re likely headed, and overturning the Purple Communications case would return them to that more employer-friendly rule that existed back in 2007 under what was called the Registered Card case, when employers were allowed to prohibit employees from using their email systems.
Harris Mufson: So, I guess, currently, it is obviously critical, that the employer policy regarding unauthorized use of their email system, have the appropriate carve-outs, and employers should all be monitoring what the Board is going to be doing in this regard. And obviously we will continue to update our clients and the general public at large about that issue. One thing that often comes up in connection with emails is can employers monitor what employees are writing, doing on their email system on a company-wide issued email system?
Howard Robbins: And the answer that is yes. It is important to have a policy so there’s no expectation of privacy around those emails. A solid communication and computer electronic device usage policy will make sure that people understand what's private and what can be reviewed. And the relationship to what you and I have been talking about is that even if an email system is available for use for union communications — union-related communications or other protected activities — that doesn't mean that the employer can’t monitor the people who are engaging in that activity. It just can't be tailored to interfere with that activity, or discriminatory. It can't be that an employer looks only at the emails of the people whom it suspects to be the union activists.
Harris Mufson: Right. Like, so for example, in connection with complaints of discrimination or harassment, oftentimes the employers will review, conduct an email review.
Howard Robbins: Yes.
Harris Mufson: And so there's nothing that would be inappropriate about that.
Howard Robbins: Nothing inappropriate about that, but when you are talking about union activity, there is a provision of the National Labor Relations Act that prohibits discriminatory conduct by employers. And so if a policy that’s neutral on its face is applied only to be adverse to those who are engaged in protected activity under labor law, that's not okay. So different from what you and I in our work call the Employment Context. We are talking about people exercising their rights under discrimination laws, for example, and as a matter of discovery and trying to find out what the communications were, sure, you can dig into that. But if there is surveillance of union activity or discriminatory application of a rule prohibiting certain use of an email system, that's not okay and that can get you into trouble. So it's important with this ruling and others like it to be neutral in the application of those even if part of what you might secretly hope is that you might come across some of those communications.
Harris Mufson: Well, so both of the recording and monitoring issues are certainly concerns that I know employers have, and I think that our discussion today certainly will inform their view about those issues. So thank you again for joining us on the Proskauer Brief today. Stay tuned for more insights on the latest hot topics on labor and employment law, and be sure to follow us on iTunes.