In Alabama, any party to a conversation can record that conversation without the consent of the other party. In short, if you and I are talking, I can secretly record the conversation without violating any Alabama law.
Many employers try to combat that general rule by implementing “No Recording” policies, which prohibit any type of audio or video recording in the workplace. While secret recording does not violate Alabama law, it could violate a company policy and therefore serve as a ground for termination of employment.
In 2015, the National Labor Relations Board issued a decision finding that such a policy by Whole Foods Market violated the National Labor Relations Act. The NLRB theorized that broad “No Recording” policies would prevent employees from engaging in conduct protected by the Act — such as making images of protected picketing, documenting unsafe work conditions, and making recordings for use in future administrative or judicial actions.
The NLRB’s decision has been appealed to the Second Circuit Court of Appeals. Nevertheless, there are three key lessons that employers can learn:
1. Broad policies that impose a complete ban on any kind of recording in the workplace will be found by the NLRB to violate the National Labor Relations Act.
2. It may be possible craft a narrowly-tailored “No Recording” policy that will satisfy the NLRB. The NLRB left some room in its decision to allow restrictions on recordings. At this point, however, the NLRB has not provided clear guidance on the scope of such restrictions.
3. Before disciplining an employee for recording a workplace conversation, employers should consult with their attorney to ensure they do not accidentally violate the Fair Labor Standards Act.