Will the NLRB Decision Allowing Secret Recording in the Workplace Affect Massachusetts Workers?

This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace.  For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.

The question, then, is what effect the decision has on Massachusetts employees’ right to make audio recordings in the workplace. To answer this question, we have to look at the jurisprudence surrounding federal preemption under the NLRA. At its most basic, the doctrine of federal preemption holds that when federal and state laws directly conflict, the federal law trumps the state law. . In the context of the NLRA, the Supreme Court has held that one of the ways the NLRA preempts state regulation is when state laws regulate activity that the NLRA protects or prohibits. In the leading case on this subject, the Court held when a state law interferes with clear federal policy on labor relations, the state law must yield. But it is important that the state law and federal law squarely conflict with one another. Where the state regulates activities that are only peripherally related to federal labor relations law, or where the state law addresses deeply rooted local interests, the state law is not preempted. Specifically addressing the NLRA, the Court held that when a state law regulates activities that are protected by Section 7, or prohibited by Section 8 of the Act, the state law must yield. The Court further noted that it is the role of the NLRB, not the courts, to determine which rights are protected by the NLRA: “If the Board decides, subject to appropriate federal judicial review, that conduct is protected by § 7, or prohibited by § 8, then the matter is at an end, and the States are ousted of all jurisdiction.” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959). In the Whole Foods case, the NLRB determined that the right of employees to make recordings in the workplace is – at least sometimes – one of the rights protected by Section 7 of the Act. Under Garmon it is therefore possible that the Massachusetts law will have to yield in the circumstances where employees wish to make recordings to advance their rights under the NLRA.

Should the NLRB’s decision either go unchallenged by Whole Foods, or be upheld by a federal court, we would expect to soon see litigation in states like Massachusetts with two-party consent laws, to determine if under Garmon the NLRB’s decision preempts the state wiretapping laws, which would create an exception to those laws that would allow employees to record certain conversations in the workplace.