If you have a policy restricting your employees from recording conversations or taking videos and photos in the workplace, you may want to re-evaluate whether it’s still a lawful policy. Recently, a National Labor Relations Board (the “Board”) ruled 2-1 that Whole Foods’ policy restricting employees’ recordings in the workplace violated their rights under the National Labor Relations Act (the “Act”). In an era where laws often strain to keep up with technological advancements, the Board’s decision could serve as important precedent where practically every employee carries recording devices, i.e. their phones, in their pockets at all times.
Section 7 of the National Labor Relations Act (the “Act”) guarantees employees “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,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7” of the Act.
The Board found that Whole Foods’ policies restricting recordings, which were laid out in its “General Information Guide” (an employee manual governing employee do’s and don’ts), violated employees’ Section 7 rights. The manual included two policies prohibiting recordings:
- “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.”
- “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.”
Whole Foods argued the rule wasn’t meant to intimidate employees or interfere with their rights. It was just the opposite, the company claimed. “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,” the manual explained. And based on Whole Foods’ argument, the administrative law judge in the underlying action held that making recordings in the workplace was not a protected right, but was subject to an employer’s unquestioned right to make lawful rules regulating employee conduct in its workplace. The judge further held that the rules addressed legitimate business concerns in attempting to promote open and honest dialogue in the workplace and that reasonable employees would not interpret the rule to restrict their Section 7 rights.
However, in overturning the administrative law judge’s decision, the Board found that Whole Foods’ policies unqualifiedly prohibited all work-place recordings and in doing so actually chilled the employees’ Section 7 rights to collectively bargain or engage in other concerted activity for their benefit. “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.” Such protected conduct may include, for example, “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 that in many cases photography or recording of this type of conduct, often covert, was an essential element to ensuring or vindicating employees’ Section 7 rights.
Takeaway: Despite the Board’s decision, however, employers should be careful about foregoing their policies restricting recordings. Although federal wiretapping laws allow recordings where just one of the parties consents, usually the party doing the recording (called “one-party consent laws”), many local state wiretapping laws still prohibit recordings unless every party to the conversation consents to the recording (“two-party consent laws”). Currently, eleven states have adopted “two-party consent” laws: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. However, regardless of the type of consent law, it is almost always illegal for an employee to record a conversation to which he or she is not a party, did not obtain consent, or could not naturally overhear. As always, since these laws are constantly in flux, checking with your legal counsel before making any policy changes is recommended.