Before you all jump on me about hating California law, this one does not come from California.  In fact, this rule comes from our friends at the National Labor Relations Board (NLRB), despite California law.

As many of you know, California is a dual-consent state, which means that the general rule regarding recording of conversations is that both parties must consent.  And that in fact is still the rule when it applies to YOU, as the employer.  That is why you cannot unilaterally install audio recording devices in your establishments or on your phones, without first getting the consent of all parties to record the conversation.

However, as you may also recall, when it comes to state law, in many cases, certain federal laws will “pre-empt” and take precedence over those state laws. One such law is the National Labor Relations Act (NLRA). 

Under current NLRB precedent, employees have the right to record at the workplace under the NLRA if they are engaging in “protected concerted activity” with the recording. Protected concerted activity in turn covers a wide array of employee activities, including but not limited to discussing wages, benefits, and other terms and conditions of employment, union organizing, and other collective employee organizing efforts.

To that end, in a February 2023, the NLRB ruled that two employees who secretly recorded management conversations had, in doing so, engaged in protected concerted activity. The NLRB’s rationale was that, since the employees made the recordings out of a concern that management would later retaliate against them for engaging in protected concerted activities, such as their unionization efforts, the employees’ actions were protected under the NLRA, even in a dual consent state where the company had a policy against such clandestine recording. Starbucks Corporation et al., NLRB, Feb. 13, 2023.

The NLRB is famous for taking extremely broad views, and this is yet another one.  We did revise our handbook policy for 2024 in light of this ruling, but I held off making any broad announcements about this decision, waiting to see how much traction it received in California.  I still have not seen any California court decisions embracing this ruling.  However, in the last year, I have seen several employees boldly record meetings and cite to “their right” to so record.  And since my clients all thought they had the right to fire employees for secretly recording those meetings, I decided it was time to do one of these articles and advise you all of this new ruling. 

The NRLB decision is not without its limits.  The right to record extends to management conversations which impact the terms and conditions of employment.   Further, employers still have a right to protect trade secret, confidential and true “private” information.  But those work rules will be interpreted narrowly.   Employers or high level employees who deal with highly confidential work settings, government contractors, financial institutions, healthcare, may have different sets of privacy concerns.  Reach out if you have questions about this new law, and be wary of your meetings with employees, lest you have them be recorded.