The Walls Have Ears: NLRB Invalidates Employer’s Prohibition on Recording in the Workplace

Whole Foods Markets received the proverbial ugly holiday sweater in the form of a December 24, 2015, 2-1 decision by the National Labor Relations Board that declared its policy prohibiting recording in the workplace unlawful. The decision in the cases Whole Foods Markets, Inc. and United Food and Commercial Workers Local 919 and Workers Organizing Committee of Chicago, focused on two rules contained in Whole Foods’ General Information Guide. The first prohibited the recording of meetings, with the laudable, express goals of encouraging “open communication, free expression of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The only exceptions were when the recording was approved by management or all parties to the conversation consented. The second rule also prohibited the use of a recording device in order 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.” Seems fair, right? Not according to the NLRB.

The majority (Chairman Pearce and Member Hirozawa) determined that the rules, despite their stated purposes, could be reasonably construed by employees as prohibiting activity protected by Section 7 of the National Labor Relations Act, and, if left intact, would unreasonably chill employees in their exercise of Section 7 rights. Section 7 grants employees the right to, among other things, engage in “concerted activities” for their “mutual aid or protection.” The majority cited testimony offered by Whole Foods’ Global Vice President of Team Member Services that the rules applied regardless of whether the employee was engaged in protected concerted activity. The rules did not offer any exception for an employee who was exercising his Section 7 rights by using a recording device. The broad, unlimited language in the rules was their undoing.

Contrary to the finding by the administrative law judge, the majority determined that audio and visual recordings in the workplace, like photographs, are protected by Section 7 where the employees are acting in concert for their mutual aid and protection and there is no overriding interest of the employer. It cited numerous examples of when photographs and recording could constitute protected conduct. Does the Board’s decision mean that “no recording” policies are per se unlawful? In a word, no. The Board seems to limit its decision in a footnote: “…we are not making any findings as to whether particular recordings are concerted, let alone finding that recording necessarily constitutes concerted activity. Nor are we holding that all rules regulating recording are invalid. Rather, we find only that recording may, under certain circumstances, constitute protected concerted activity under Section 7 and that rules that would reasonably be read by employees to prohibit protected concerted recordings violate the Act.” The Board viewed these rules as impermissibly overbroad but leaves employers guessing about what a rule that employees would reasonably understand does not restrict their Section 7 activities might look like. The Board rejected Whole Foods’ argument that the decision ignores state wiretapping laws that prohibit nonconsensual recording, noting that the Whole Foods rules were not limited in application to those states.

Would the Whole Foods rules have passed muster if they specifically indicated that they did not apply to recording activities in furtherance of Section 7 rights? The answer is not clear. However, we know from Board decisions on social media policies that specific carve outs for the exercise of Section 7 rights do not always save the day.

The lone dissenter, Member Miscimarra, takes the side of the employer, relying on the stated purposes of the rule and concluding that the rules safeguard, rather than prohibit, Section 7 activities. He cites testimony by the same witness cited by the majority, who explained that Whole Foods places a premium on the free exchange of ideas and encourages its employees to speak out, and they often do in meetings on sensitive, and sometimes, private and personal subjects. If there was to be a chilling effect, it would come not by the rules but from the knowledge that once sacred communications could now be secretly recorded.

Where does the decision leave employers? Scratching their heads, for sure. Employers can take some comfort in knowing that “no recording” policies are not prohibited and that a “narrowly tailored” policy that employees reasonably understand does not limit their Section 7 rights is permissible. As was the case with social media policies, there will inevitably be some trial and error before the delicate balance between employee rights and employer interests can be achieved.

For answers to any questions regarding this blog or with regard to work place policies generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department.
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