It stands to reason that employers may not want employees recording conversations in the workplace. Recording conversations could discourage the free flow of open ideas. The recordings could also contain confidential or sensitive information that the employer does not want floating around the digital universe. In some states, recording workplace conversations may even be illegal if not all parties consent to it. Mindful of these concerns, employers may wish to enact policies precluding video or audio recording at work. According to the Second Circuit, however, employers who do so risk violating the National Labor Relations Act (“NLRA”) if their policies are overbroad. In a June 1, 2017 summary order, the court upheld a National Labor Relations Board’s Order finding that Whole Foods Market, Inc.’s policy did just that.
Whole Foods Market implemented a policy prohibiting employees from recording “conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular phone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from” management. The policy applied to all areas of the store, including the parking lot and the area in front of the store. According to testimony provided by Whole Foods’ global vice president, the policy applied regardless of whether employees were engaging in activity protected under the NLRA.
The store’s employees, through their union, alleged that the policy violated section 8(a)(1) of the NLRA. That section makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7” of the Act. In turn, section 7 guarantees employees the right to “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Both an administrative law judge and the NLRB agreed with the employees. Whole Foods then appealed the NLRB finding to the Second Circuit.
In Whole Foods Marketplace, Inc. v. N.L.R.B., the Second Circuit began its analysis by noting that “the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their section 7 rights.” The court noted past precedent establishing such violations where (1) the policy was promulgated in response to union activity, (2) the policy was specifically applied to restrict the exercise of section 7 rights, or (3) employees would reasonably construe the language to prohibit protected activity. The parties agreed that the first two prongs were not at issue, leaving the court to inquire as to the third prong: whether Whole Foods’ employees would reasonably construe the no recording policy as prohibiting protected activity.
The court upheld as reasonable the NLRB’s finding that the policy prohibiting “all recording without management approval” could be construed as prohibiting section 7 rights. The court dismissed Whole Foods’ attempt to separate the act of “recording” from conduct falling within section 7’s protection because, according to the court, Whole Foods policies “prohibit recording regardless of whether the recording is in relation to employees’ exercise of their section 7 rights.” This could include “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous conditions,” and other forms of protected activity.
Despite its ruling, the Court did leave open a window for employers to enact limited no-recording policies without running afoul of the NLRA. In holding that Whole Foods’ policy was overbroad, the court noted that “the policies as written were not limited to controlling those activities in which employees are not acting in concert.” In a footnote, the court then added, “[t]his is not to say that every no-recording policy will infringe on employees’ section 7 rights,” and that Whole Foods could have enacted a compliant policy “simply by narrowing the policies’ scope.”
Takeaway for Employers
Employers who wish to enact no-recording policies should ensure that their policy does not violate the NLRA. A broad policy prohibiting all recording of any kind under any circumstances will not likely withstand legal scrutiny. A no-recording policy should instead be narrowly tailored and expressly detail its compliant purpose (e.g., to protect trade secrets or prohibit illegal tape recording). It should also make clear that the policy is not intended to limit employees’ rights to engage in protected activity. Any employer considering such a policy is encouraged to consult with their legal counsel to ensure its compliance with applicable laws.