NLRB Rules Broad Employer Rules Restricting Recordings in the Workplace Violates Employee Section 7 Rights

By BrownWinick Employment Law Practice Group

On December 24, 2015, in Whole Foods Market, Inc., 363 NLRB No. 87,  the National Labor Relations Board ruled in a 2-1 decision that two rules which prohibited employees from recording company’ meetings or conversations in the workplace violated section 8(a)(1) of the National Labor Relations Act.

The two Whole Foods’ no-recording rules had been in effect since 2001 and were implemented in the context of its open door policy. Whole Foods global vice president for team member services (human resources) testified that the rules applied “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” The rules in question provided:

Team Meetings - In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery

Team Member Recordings - It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

Previously, the ALJ held Whole Foods’ no recording rules were lawful because they did not explicitly prohibit Section 7 protected, concerted activity, were not promulgated in response to union activity, had not been applied to restrict the exercise of Section 7 rights, and could not reasonably be read as proscribing Section 7 activity.

In reversing the ALJ’s decision, the Board’s majority held the rules at issue prohibited the recording of conversations, phone calls, images or company meetings with a camera or recording device without prior approval; and that the rules would reasonably be construed by employees to prohibit Section 7 activity. The Board reasoned that photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.  Examples of protected activity cited by the Board included recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. The Board further noted its case law was replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right.

The Board did, however, acknowledge that its ruling was not intended to bar all employer prohibitions regarding recording. “We do not hold that an employer is prohibited from maintaining any rules regulating recording in the workplace. We hold only that those rules must be narrowly drawn, so that employees will reasonably understand that Sec. 7 activity is not being restricted.”

In light of the Board’s Whole Foods ruling, it is suggested that you review your Employer handbooks and consult with a labor attorney before adopting any rules regarding workplace recording.