Labor & Employment Law Daily Wrap Up, NLRB NEWS—Advice says termination for using cellphone to record meeting about unpaid incentive was not violation, (Jul 10, 2026)

By Brandi O. Brown, J.D.

There was no evidence that the employee made the recording to further the purpose of “collectively” obtaining payments.

In this Advice Memorandum, the NLRB Division of Advice recommended dismissal of unfair labor practice allegations against Sutherland Global Services, Inc., concluding that the evidence was insufficient to establish violations of Section 8(a)(1) of the National Labor Relations Act. The charge alleged that the employer unlawfully changed its overtime practices in response to protected concerted activity and later terminated an employee for engaging in protected activity by recording a meeting with a supervisor.

The charging party worked remotely for Sutherland, a business process outsourcing company that provides call-center services for various clients. When hired, employees could generally work overtime without prior approval. In April 2022, the employer announced a program offering incentive pay for employees who worked weekend overtime. Although the charging party performed the qualifying overtime work, the promised incentive pay was never received.

“You guys” reference. Over the next several months, the employee repeatedly contacted management seeking payment. One supervisor responded that management was working on getting “you guys” the incentive pay that was owed.

Prior approval required. In early 2023, the charging party began discussing wage concerns with several coworkers and specifically discussed the unpaid incentive issue with at least one coworker. The employee took the matter to HR and higher-level management officials while requesting payroll records and information. Shortly thereafter, management informed employees that prior approval would be required before working overtime.

No Wright Line violation. Regarding the change to the approval policy, the Division concluded that the evidence did not support a finding that the overtime policy change violated Section 8(a)(1) under Wright Line. Although the employee’s complaints regarding unpaid incentive compensation were arguably a continuation of earlier discussions with coworkers and therefore could be considered protected concerted activity, there was little evidence that the employer understood the complaints as group-related. The memo notes that the employee’s communications with upper management did not specifically reference coworkers, and the supervisor’s statement about obtaining money for “you guys” was not enough to demonstrate employer knowledge of concerted activity, particularly because that supervisor used the same phrase prior to commencement of group activity.

The Division also found no persuasive evidence of retaliatory motive. The overtime policy change applied to the entire team rather than solely to the charging party, and there was no reliable evidence that the employee was singled out or denied overtime opportunities after the change. As a result, the timing of the policy change alone was insufficient to establish unlawful retaliation under the Wright Line framework.

Recording not protected activity. Additionally, the memorandum addressed the employee’s termination. The charging party secretly recorded a meeting with a supervisor concerning workplace issues, including the unpaid incentive pay dispute, and later emailed the recording to coworkers. The employer terminated the employee for violating its “Clean Desk Policy,” which prohibited employees from keeping personal devices such as cell phones at their workstations because of client confidentiality concerns.

The Advice Division determined that the recording itself was not protected concerted activity. While workplace recordings can be protected when made in furtherance of employees’ collective efforts, the available evidence showed that the charging party recorded the meeting primarily for personal reasons and expressly stated during the meeting that the employee was speaking only on their own behalf. Furthermore, neither the employee’s email transmitting the recording nor coworkers’ responses demonstrated that the recording was intended to advance collective action.

Evidence issues. Finally, Advice found insufficient evidence that the discharge was motivated by any earlier protected activity. Although there were allegations that a supervisor created a text chat seeking information about the employee’s negative comments concerning the company, the region was unable to obtain the chat, and the evidence consisted largely of hearsay. Accordingly, the Division of Advice concluded that the employer lawfully terminated the employee for violating the Clean Desk Policy and recommended dismissal of the charge absent withdrawal.

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