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Beware of Hidden Recording DevicesSteven S. Glickman

With the expansion of social media and with the ever increasing enhancements in recording devices, the ability and desire of employees to record conversations with their employers has increased exponentially. The question is: Do employees have the right to surreptitiously record conversations with their employers? Unfortunately, for employers, the answer is YES!

In Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago, 2015 NLRB LEXIS 949; 205 L.R.R.M. 1153; 2014-2015 NLRB Dec. (CCH) P16,082; 363 NLRB No. 87, this issue was addressed in the context of the National Labor Relations Act.

Whole Foods maintained rules in its General Information Guide prohibiting recording in the workplace without prior management approval. In outlining the applicable principles, the Board held:

A rule violates Section 8(a)(1) if it will reasonably tend to chill employees in the exercise of their Section 7 rights. If the rule explicitly restricts activities protected by Section 7, it is unlawful. If it does not, there is no violation unless: (1) employees would reasonably construe the language to prohibit Section 7 activity; or (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
 
In its analysis, the Board found that Whole Foods’ rules could reasonably be construed by employees to prohibit Section 7 [NOTE: This reference is to Section 7 of the National Labor Relations Act, the law governing labor-management relations in the private sector] activity: “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”.

The sentiment and analysis of the NLRB echoes New Jersey statutes establishing public policy on this issue, as well as both State and Federal case law.

In Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), the Court determined that an employer can be held liable under New Jersey common law for discharging an employee in violation of a clear mandate of public policy.

In Marxe v. Jackson, 833 F. 2d 1121 (3d Cir. 1988), an employee was terminated for surreptitiously recording conversations in support of her discrimination claims. In analyzing the “likelihood of success on the merits” in the context of a motion for summary judgment, the United States Court of Appeals for the Third Circuit upheld the determination of the District Court that retaliation could have been a motive for the termination, thereby legitimizing the surreptitious record of conversations in support of discrimination claims.

N.J.A.C. 10:5-12, entitled “Unlawful Employment Practices, Discrimination”, Section (d), makes it an unlawful employment practice or an unlawful discrimination:

For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.
 
More specifically, N.J.S.A. 2A:156A-4, entitled “Lawful interception activities; exceptions”, Section (d) makes it lawful for:

A person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or this State or for the purpose of committing any other injurious act.
 
Based on these cases and statutes, it is the public policy of the State of New Jersey to permit the surreptitious recording of conversations to “advance” an employee’s statutorily protected rights. Employers should, before any meeting with an employee, ask the employee if he or she is recording the conversation. Failure to provide a truthful answer changes the circumstances and may totally negate the ability of the employee to use that recording in any subsequent proceedings. It may also give the employer ground for termination.