Matthew LaGarde and Carolyn Wheeler Co-Author Law360 Article on Recent Employee Recording Policy Decision

Katz, Marshall & Banks senior council Carolyn Wheeler and associate Matthew LaGarde co-wrote an article for Law360’s Expert Analysis section titled, “When Employer Rules against Recoding may Violate NLRA.” The article discusses a recent decision by the Second Circuit affirming that employers cannot prohibit employees from recording meetings or conversations. This ruling cements workers’ right “to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection,” which falls under Section 7 of the National Labor Relations Act. The defendant in this case, Whole Foods, justified its ban on employee recording as a way to promote employee communication – not to stymy their employees’ Section 7 rights.

The authors note that this protection is strong with regards to protected union activity and employee efforts to improve their conditions, but there are constraints, and employer bans on workplace recording are not always illegal. Recording efforts must be concerted and made with the intent of reporting or uncovering unlawful activity. Additionally, the courts have ruled that hospitals are allowed to prohibit the use of electronic equipment, and some states require all parties being recorded to give consent.

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