Recording Meeting In Office Protected by National Labor Relations Act

For those of us in all-party consent states like Florida, it's always an issue whether employees may record conversations with supervisors surreptitiously. Now employees have another weapon in their arsenal to support the legality of office recordings: the National Labor Relations Act (the Act).

In a recent decision, a National Labor Relations Board Administrative Judge held that a recording of a meeting where unionization was being discussed was both legal and protected by the Act, even though company policy prohibited such recordings:

Section 7 of the Act reads as follows: 

Employees shall have the right, to self-organization, to form, join, or assist labor 35 organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a 40 condition of employment as authorized in section 8(a) (3). 

29 U.S.C. § 157. Thus, employees have a statutory right to engaging in union and protected concerted activities, or to refrain from any and all such activities. Cf. Stanton Industries, Inc., 313 NLRB 838, 848 (1994) (noting the Board has “pointed out over and employees have the 45 right to engage in union activities, as well as the right to refrain from engaging in union activities, which rights are guaranteed by Section 7 of the National Labor Relations Act.) JD(SF)–21–19 14 

Regarding Mansour, I find that his actions were protected by Section 7 of the Act. In the January 9 captive-audience meeting Respondent was presenting its position to employees and attempting to persuade them to vote the Union out. Mansour had never previously been in a 5 union, he is dyslexic, and English is his second language. He decided to record the meeting to listen to it more carefully later and get a better understanding of what being discussed. Mansour was simply documenting the meeting in order to study Respondent’s position, so he could make an educated choice when voting to either retain or decertify the Union. Respondent argues his actions are not protected because he did not discuss his intentions to record the meeting with 10 anyone else. However, I find Respondent’s argument misguided.

The judge also found that the recordings were legal under Washington law because the subject matter, unionization, was not private and the employer could not restrict employees from discussing what happened in the meeting. Further, the judge determined there was no expectation of privacy in the meeting.

So, while this decision only applies where the meeting is about unionization or working conditions on behalf of coworkers as well as yourself, and only if you aren't in management, and only if you work for an employer covered by the Act (which is most non-government employers), it may keep you from being fired (or prosecuted) if you get caught recording a workplace meeting.

What Unions Can Do To Help Immigrant Members

The National Immigration Law Center has this helpful information for unions that want to help their members in this time of ICE raids:

If you belong to a labor union, there are ways it can help you. You should talk to your union representative about your concerns. If it would make you feel more comfortable, ask some of your co-workers to go with you to talk to your representative. Your union contract might have language that protects union members, such as an agreement with the employer that has one or more of the following provisions:

• The employer will not allow any Immigration officers to enter the workplace without a valid warrant signed by a federal judge or magistrate
• The employer will immediately notify the union if the Immigration authorities contact the employer for any purpose so that the union can take steps to inform its members about their legal rights or to help them obtain legal assistance.
• The employer will allow lawyers or community advocates brought by the union to interview employees in as private a setting as possible in the workplace. The union might also have a legal plan, which provides workers with immigration attorneys.
• The employer agrees not to reveal the names, addresses, or immigration status of any employees to Immigration, unless required by law.
• The employer will not participate in any computer verification of employees’ immigration or work authorization status.

I hope labor unions that don't have these provisions in place will look at ways they can negotiate to help their immigrant members.

What To Do If ICE Shows Up At Your Workplace (For Employees)

Since it looks like the ICE raids have started, I thought I'd publish this helpful information put out by Penn State Law's Center for Immigrants’ Rights Clinic:

All people living in the United States, including undocumented immigrants, have certain U.S. Constitutional rights.  

If immigration officers (ICE) come to your work place, they must have a valid search warrant or the consent of your employer to enter non-public areas. If you are undocumented and immigration officers come to your work place, be aware of the following: 

• Do not panic and do not run away. If you are frightened and feel like you need to leave, you can calmly walk toward the exit. 

• If you are stopped, you may ask if you are free to leave. If the officer says no, do not try to exit the building. 

• If you are questioned, you may tell them you want to remain silent. 

• You have the right to remain silent. You do not need to speak to the immigration authorities or answer any questions. 

• If you are asked where you were born, or how you entered the United States, you may refuse to answer or remain silent. 

• If you choose to remain silent, say so out loud. 

• If they ask you to stand in a group according to immigration status, you do not have to move, or you can move to an area that is not designated for a particular group. 

• You may show a know-your-rights card to an officer that explains that you will remain silent and wish to speak to a lawyer. 

• You may refuse to show identity documents that say what country you are from. 

• Do not show any false documents and do not lie. 

• You have the right to speak to a lawyer. If you are detained or taken into custody, you have the right to immediately contact a lawyer. 

• Even if you do not have a lawyer, you may tell the immigration officers that you want to speak to one. 

• If you have a lawyer, you have the right to talk to them. If you have a signed Form G-28, which shows you have a lawyer, give it to an officer. 

• If you do not have a lawyer, ask an immigration officer for a list of pro bono lawyers. 

• You also have the right to contact your consulate. The consulate may be able to assist you in locating a lawyer. 

• You can refuse to sign any/all paperwork until you have had the opportunity to speak to a lawyer. 

• If you choose to sign something without speaking to a lawyer, be sure you understand exactly what the document says and means before you sign it.

Even if you aren't an immigrant, you can help coworkers by having this information handy in case of an ICE raid.

Enjoy Your Summer Internship - You May Never Work In Your Field Again

In a new low for management side, the Wall Street Journal exposed the ugly practice of intern noncompetes. That's right. Intern. Noncompetes.

Let me get this straight. A college or high school student goes to work for little or no pay, and they are handed a bunch of papers to sign. They're so thrilled at the opportunity to work for this company, they don't read. They just sign. They never get a copy of what they signed.

Surprise! After they graduate, they get their dream job in the industry, and along comes the nastygram. "Dear John, You aren't allowed to work at your dream job because you signed a noncompete. You can't work in your field for two more years. By then, all the entry level jobs will be taken. Enjoy your work at McDonald's flipping burgers." And the letter to John's employer: "Dear New Employer: You hired John. He signed this noncompete. If you don't fire John, we'll sue you, your mother, your dog, and everyone you ever met."

So John is fired, and he's fighting a big corporation from the position of being unemployed. The new employer now has a bad taste in its mouth for John, so he's lost that opportunity. He's out of his field and unable to fight. Lesson: read everything before you sign, and keep copies. If you can't live with it, don't sign.

Yes, there are defenses to noncompetes. But to fight them, you have to be able to afford an attorney and court costs. Most people, especially recent college grads, can't afford that.

My state's Senator, Marco Rubio (with whom I almost never agree, except now) has proposed a bill that would prohibit noncompetes for hourly employees. That would be a great start.  Democrats have repeatedly tried and failed to limit noncompetes over the years, so maybe a Republican can get his colleagues to listen.

Some states, like Massachusetts, have also banned noncompetes for hourly and low wage employees. Illinois banned noncompetes for low wage workers. California, Oklahoma and North Dakota ban most noncompetes. There are lots of bills pending that would address problems with noncompetes in various states.

I think luring interns in with the promise of job opportunity and college credit, then making them sign away their right to work in their field, is unconscionable. If you agree, support any elected official's efforts to limit or ban noncompetes.  And vote with your money: don't do business with companies that have obnoxious noncompetes for interns and low wage employees.