POLICY BARRING RECORDING OF CO-WORKER CONVERSATIONS HELD TO BE UNLAWFUL

A recent court decision highlights the National Labor Relations Board’s continuing hostility to broad privacy policies.  AT&T Mobility LLC, 05-CA-178637, JD 27-17 (April 25, 2017) (Amchan, A.).  The decision, issued on April 25, 2017, arose out of a challenge to the employer’s broad privacy policy. The policy provided:

Privacy of Communications: Employees may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the Legal Department, required by the needs of the business, and fully comply with the law and any applicable company policy.

The basis of the challenge was that the rule tends to “chill” employee rights under the National Labor Relations Act. The administrative law judge reasoned that the privacy policy would unlawfully interfere with the rights of employees to communicate regarding the terms and conditions of employment.  (The court did note that a policy prohibiting recording of customer conversations would be lawful because the employer would have a strong interest in the confidentiality of customer information).  For employers, the lesson is that broad rules impacting employee communications (or recording of communications) continue to face significant challenges before the National Labor Relations Board. 

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EMPLOYEE INFORMERS PROTECTED UNDER FAIR LABOR STANDARDS ACT

A very recent federal court decision highlights the protections extended by the Department of Labor (“DOL”) to employees that furnish information utilized by the DOL when suing their employers. Hugler v. Maranto, No. 5:15-cv-01378 (W.D. Okla. Apr. 17, 2017) (order).  The defendants in that case operated a large restaurant and were sued by the DOL for failing to pay overtime compensation and other related claims.  As part of the pre-trial discovery process, the employer sought to obtain the identities of the employees that had provided information to DOL. 

The federal court ruled that at the discovery stage of litigation, the DOL could continue to withhold from disclosure the identities of the employees.  This is consistent with the position taken by federal agencies and courts to provide protection to “informers.”  The court reasoned that if the case proceeded to trial, the DOL would have to disclose the identity of the employees, but until that point it could maintain the confidentiality of the employees’ identities.

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OBAMA ADMINISTRATION OSHA RULE “WITHDRAWN”

The Occupational Safety and Health Administration ("OSHA") recently rescinded a controversial enforcement policy that had been the subject of a lawsuit brought by the National Federation of Independent Business. National Federation of Independent Business v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Apr. 17, 2017) (notice of dismissal).  The controversial OSHA policy, developed in 2013, changed OSHA’s long-standing policy that gave employees a right to accompany OSHA staff conducting workplace inspections.  Importantly, the previous policy  permitted only employees to participate in the inspection. 

The new policy was challenged in federal court on the grounds that it allowed third parties, including union representatives, to attend, and had not been properly promulgated by OSHA. The lawsuit was voluntarily dismissed on April 27, 2017 when OSHA announced that it was terminating the new policy and returning to the previous policy that only employees of the subject employer could participate in the OSHA inspection process.  Look for similar changes to other enforcement policies as the Trump administration continues to review the multiple policy changes implemented by the Obama administration.

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Employment Law Overview

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