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NLRB Holds Employee's Secret Recording of Meeting is Protected Activity

In an era where nearly every American has a phone, a camera, a music player and a recorder on them at all times, the National Labor Relations Board (NLRB) recently held that an employee's recording of a meeting with management after having first been disallowed bringing a coworker into the meeting as a witness was protected activity under the National Labor Relations Act (NLRA). Employees should note that this case's ruling is not an absolute and may differ in another scenario. Indeed, the Board did not comment as to whether their analysis might change if a case arises in a state such as Washington, California, Oregon, or Alaska that prohibits the secret audio recording of private conversations without the consent of one or more parties. Also noteworthy is the fact this employer did not have a specific policy against secret recordings though that may not prove to be dispositive in the future as the right to bring a witness to investigatory meetings with management if the employee reasonably believes the meeting could result in discipline is known as Weingarten rights. (NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). Because the employee agreed with a group of his co-workers that the meeting should be recorded to document potential labor violations, the NLRB determined that the employee's actions were "protected concerted activity" and overturned the employer's decision to fire the employee for making the secret recording. Also, the Board required the employer to rescind a policy it implemented after this incident prohibiting secret recordings. The Board said the new rule was "overly broad." The case is Stephens Media LLC d/b/a Hawaii Tribune-Herald, 356 NLRB No. 63

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