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NLRB Rules Workplace No-Recording Policy Unlawful

Lucie Riviere

On December 24, 2015, the National Labor Relations Board (“NLRB”) held that Whole Foods Market, Inc.’s policy of prohibiting employees from audio and video recording in the workplace violates the National Labor Relations Act (“NLRA”).

A Chicago-based union and the Workers Organizing Committee of Chicago (“WOCC”) challenged two rules found in Whole Foods’ General Information Guide (“GIG”). These rules prohibit employees from making any recording at work including conversations between employees, phone calls, images or company meetings unless prior approval is received from management. According to the GIG, the purpose of the rules is to “encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust” and “eliminate a chilling effect on the expression of views that may exist.”

The NLRB found that the rules violate Section 8(a)(1) of the NLRA, which prohibits employers from making rules that would unreasonably tend to chill employees in the exercise of their rights protected by Section 7 of the NLRA. Section 7 protects the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and […] the right to refrain from any or all of such activities.” Such protected conduct may include, for example, recording images of picketing, documenting unsafe workplace equipment or hazardous working conditions, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. The Board stated in its opinion that “the rules at issue here unqualifiedly prohibit all workplace recording. Although the dissent claims that employees would reasonably interpret the rules to protect, not prohibit, Section 7 activity, the rules themselves do not differentiate between recordings protected by Section 7 and those that are unprotected.” The board added, “[The fact] that the rules contain language setting forth an intention to promote open communication and dialogue does not cure the rule of its overbreadth.” The Board also rejected Whole Foods’ argument that employees could still exercise their right during nonworking time, stating that the distinction between working time and nonworking time was not clear in the policy. In dicta, the NLRB indicated that rules restricting workplace recordings may satisfy Section 8 if they clearly allow recording activities that are protected by Section 7. For example, a rule prohibiting only the recordings of meetings in which trade secrets are discussed would likely be valid.

Additionally, several states have laws limiting what an individual can record: California and Massachusetts, for example, require the consent of all parties in order for a conversation to be recorded legally; New York only requires the consent of one party to the conversation. These State laws supersede any company policy.

If you have any questions or concerns about your right to record in the workplace or any other employment rights, please contact The Harman Firm, LLP.

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