The Employer's Legal Resource: "Can you speak a little louder?" - NLRB Rules That Policies Prohibiting Workplace Recordings Are Illegal

01.01.16

A divided panel of the NLRB ruled that a company's policy prohibiting employees from recording conversations or taking photos inside the company's stores chilled employees in the exercise of their Section 7 rights and is illegal, overturning an administrative law judge's ruling to the contrary.

Upscale grocer Whole Foods Market has a "General Information Guide," or employee manual, setting forth "do's" and "don'ts" for its employees. One of the "don'ts" prohibited audio and video recordings of company meetings, and another "don't" prohibited recording conversations in the workplace without prior approval of management, or unless all parties to the conversation consented.

According to Whole Foods, the rules weren't meant to curb employee rights, but were meant to have the opposite effect. Its employee manual explained that "the purpose of the 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." In other words, Whole Foods claimed that its policies encouraged a free exchange of ideas, not a suppression of ideas.

A majority of the panel disagreed. They noted the rules prohibit all workplace recording, regardless of the activity in which the employee is engaged, whether protected concerted activity or not. For example, such a blanket prohibition would prohibit employees from taking photos that document unsafe working conditions, or recording conversations that reveal discrimination in the workplace. The majority further noted that covert photographs or recordings are often an essential element in vindicating underlying Section 7 rights. The majority found that Whole Foods' policies would reasonably chill employees in the exercise of their Section 7 rights.

The ruling has broad implications since practically every worker carries a device that can take photographs and record - the smart phone. While it is too early to know whether Whole Foods will appeal the NLRB's decision (the decision was just issued December 24), any company with policies or rules similar to those of Whole Foods needs to take a close look at them.

As has been the case with decisions from the Board over the last several years, employers must carefully evaluate their decisions and determine what level of risk they are willing to assume. This is another such situation. In the age of employers concerns about employees recording other employees as well as management, the employer now must consider whether prohibiting an employee from such an activity might result in the filing of an unfair labor practice charge against it.

By Jon E. Brightmire, jbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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