NLRB Issues Clarifications Regarding Surreptitious Recordings By Employees
The National Labor Relations Board recently prepared two memoranda, one from its General Counsel and one from the Division of Advice, attempting to provide more detailed guidance on secret recordings in situations involving employees in the workplace and during collective bargaining proceedings.
Secret recording by employees in the workplace
Under Board law, an employee who makes an audio or video recording in the workplace may be engaged in activity protected by Section 7 of the Act depending on the facts and circumstances of a particular case. For example, photography and audio or video recording in the workplace 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 Board has rarely found that employee recordings for mutual aid and protection lost the protection of the Act. Workplace recordings, often covert, have been an essential element in vindicating employees’ Section 7 rights.
In general, where an employee is disciplined for union or other Section 7 activity, the employer’s liability will turn on whether the employee’s conduct was “so egregious” as to lose the employee the protection of the Act. The NLRB has now clarified that certain factors could weigh against protection such as where the recording violated state law and a workplace rule, or where the recording directly targeted an employee as opposed to a supervisor. In addition, the Board will fail to find a violation where the employee engaged in “gross” or “egregious” misconduct.
Secret recording during collective bargaining
On June 25, 2025, NLRB Acting General Counsel William B. Cowen issued GC Memorandum 25-07 to all field offices. The Memo entitled “Surreptitious Recordings of Collective-Bargaining Sessions as a Per Se Violation of the NLRA” sets forth the argument that a party which secretly records collective bargaining session(s) commits a per se violation of the National Labor Relations Act. The Board had not previously addressed whether the surreptitious recording of collective bargaining sessions is a standalone violation of the Act. The Board was concerned that without clarity of a brightline rule prohibiting surreptitious recordings of bargaining sessions, parties may lack the certainty that they are not being recorded and freely engage in open dialog at the bargaining table.
Acting General Counsel Cowen emphasized, “[t]he use of surreptitious recordings during the collective-bargaining process is inconsistent with the openness and mutual trust necessary for the process to function as contemplated by the Act.” Because advances in technology have made the ability to record conversations universally available, this capability warrants a clear statement that, in the collective-bargaining context, surreptitious recording is not lawful.
Do you have any questions regarding your workplace policies in your employee handbooks or other guidelines? Do not hesitate to contact Rosasco Law Group for any compliance issues that you may be wondering about.
