Two recent memoranda from the National Labor Relations Board (NLRB) Division of Advice and the General Counsel have clarified the agency’s position on surreptitious recordings, including those made by employees in the workplace and those occurring during collective bargaining sessions. The memoranda address the general treatment of surreptitious recordings under the National Labor Relations Act (NLRA), highlight that recordings made during collective bargaining may constitute per se violations of the NLRA, and clarify that certain secret workplace recordings may lose protection under the Act.

Surreptitious recordings may lose protection notwithstanding Section 7 activity

The NLRB has long held that overly broad workplace policies that categorically prohibit recordings are likely unlawful under the National Labor Relations Act (NLRA), as employees are generally permitted to make audio or video recordings while engaging in Section 7 activity, such as documenting workplace concerns or potential retaliation. However, these protections are not absolute, according to the Division of Advice. An employee may lose the Act’s protection if their conduct surrounding the recording is deemed egregious. The Division of Advice’s memo identified several factors that may strip an employee’s actions of NLRA protection, including:

• Violation of state law or explicit employer policies prohibiting unauthorized recordings
• Recordings that target coworkers (as opposed to supervisors or managers), thereby implicating the privacy and rights of other employees
• Conduct deemed “egregious” or grossly inappropriate under the circumstances

The Division of Advice applied this principle and reaffirmed that while employees acting in concert to document workplace concerns may be engaged in protected activity under the NLRA, surreptitiously recording a coworker, particularly when it violates state law or employer policy, can be considered sufficiently egregious to lose that protection. In such instances, employers may lawfully discipline or terminate the employee for the recording, so long as the disciplinary action is not a pretext for retaliation against protected activity.

Surreptitious recordings in collective bargaining: A per se violation of the NLRA

The General Counsel’s June 3, 2025 memo marks a significant policy development regarding the recording of collective bargaining sessions. The memo concluded that the surreptitious recording of bargaining sessions constitutes a per se violation of the duty to bargain in good faith under Sections 8(a)(5) and 8(b)(3) of the NLRA, regardless of the party’s intent or other circumstances. This position is grounded in longstanding NLRB precedent that the insistence on recording negotiations is a permissive, but not mandatory, subject of bargaining that may not be used to stifle the bargaining process. The NLRB reasoned that surreptitiously recording bargaining sessions is a way to circumvent this precedent and is inherently incompatible with the mutual trust and candor required for good faith collective bargaining negotiations that the NLRB is responsible for fostering. The memo instructed NLRB Regional Directors to issue complaints in cases where surreptitious recordings of bargaining sessions are discovered, alleging a per se violation of the duty to bargain in good faith.

Key takeaways

While the General Counsel’s memorandum does not constitute binding legal authority, it signals an intent to pursue cases involving secret recordings in order to reinforce the statutory framework for collective bargaining, specifically, by ensuring that parties can negotiate freely without fear of being secretly recorded. Of course, parties are free to mutually agree to record bargaining sessions; however, one party may not unilaterally insist on recording or secretly do so without the other party’s consent.

As to secret workplace recordings, employers should review and, if necessary, update workplace policies to address unauthorized recordings, ensuring compliance with both state law and the NLRA.

For further guidance on complying with the NLRA and agency directives regarding secret workplace and collective bargaining recordings, parties are encouraged to consult with experienced labor counsel.