Smartphones, mobile devices with an ever-expanding list of capabilities that make the “phone” part seem like an afterthought, have become a common feature of daily life throughout the U.S. Most smartphones include cameras capable of taking both pictures and video, often with better quality than some of the best digital cameras of a few years ago. This feature has made smartphones an indispensable tool in a wide range of legal matters, from police brutality investigations to employment law cases. The National Labor Relations Board (NLRB) recently found that an employer violated federal law by barring employees from using smartphones to take pictures or make recordings without permission. Whole Foods Market Group, Inc., et al., 363 NLRB No. 87 (Dec. 24, 2015). The policy, while perhaps not originally intended to do so, prevented workers from documenting workplace conditions that violate federal or state employment laws.
The NLRB investigates and adjudicates alleged violations of the National Labor Relations Act (NLRA), the federal statute that protects the right of workers to organize for collective bargaining and other purposes, and to engage in other “concerted activities” aimed at protecting workers’ rights. 29 U.S.C. § 157. In the present case, the NLRB was investigating whether a policy prohibiting smartphone use constituted “interfer[ence] with, restrain[t], or coerc[ion of] employees in the exercise of [their] rights” to engage in concerted activity. 29 U.S.C. § 158.
The use of smartphones to take photographs and record videos in the workplace, and to record conversations among employees or between employees and supervisors, can assist employees and their advocates in building a case under various employment statutes. This might include, for example, an audio recording of a supervisor making derogatory statements about employees of a certain race, sex, or religion, used in support of a claim for discrimination under Title VII of the Civil Rights Act of 1964 or the New Jersey Law Against Discrimination. The NLRA protects these activities, but wiretap statutes present a separate challenge.
Wiretap statutes govern the interception of communications made orally, electronically, or by wire. Under both federal and New Jersey laws, a person may record a conversation if at least one person consents to the recording. 18 U.S.C. § 2511(2)(d); N.J. Rev. Stat. § 2A:156A-4(d). This is known as “one-party consent.” The person making the recording, if they are a participant in the conversation, can also be the one giving consent. Some states have “two-party consent” laws, which require all parties to a conversation to give consent to recording. See, e.g., Cal. Pen. Code § 632; Fla. Stat. ch. 934.03.
The employer in Whole Foods maintained a policy, presented as a way “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust,” which prohibited employees from “record[ing] conversations, phone calls, images or company meetings with any recording device…unless prior approval is received” from a supervisor, manager, or executive. Whole Foods at 1. The NLRB found the policy to be overly broad, covering both legitimate business concerns and activity protected by the NLRA. It ordered the employer to cease and desist from enforcing the policy, and to “revise or rescind the recording rules” in its employment manual. Id. at 5.
If you need to speak to a civil rights attorney in New Jersey or New York, contact the Resnick Law Group today through our website, at 973-781-1204, or at (646) 867-7997.
More Blog Posts:
Digital Journalists in New York Vote to Unionize, Face Opposition from Publication, The New Jersey Employment Law Firm Blog, November 12, 2015
NLRB Issues Important Ruling Regarding “Joint Employers”, The New Jersey Employment Law Firm Blog, October 15, 2015
Race Discrimination Lawsuit Asks Court to Hold Restaurant Franchise Owner Liable for Acts of Franchisee, The New Jersey Employment Law Firm Blog, May 11, 2015