by Lisa Berg
On December 24, 2015, the National Labor Relations Board (NLRB) held in a 2-1 decision that Whole Foods Market, Inc.’s blanket rules prohibiting employees from recording, without management approval, company meetings, conversations with coworkers, and images violated the National Labor Relations Act (NLRA). The Board’s ruling has broad implications at a time when practically every employee carries a smartphone or some other recording device. 
Workplace rules at issue
At the center of this case were the following two rules in Whole Foods’ “General Information Guide” (similar to an employee handbook):
Team Meetings: 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.
Team Member Recordings: 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. 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.
The United Food and Commercial Workers International Union, Local 919, filed an unfair labor practice charge challenging the no-recording rules. An administrative law judge (ALJ) dismissed the union’s challenge to the policy, and the NLRB’s General Counsel appealed.
NLRB’s decision
Although Whole Foods’ rules didn’t explicitly restrict activities protected by Section 7 of the NLRA—a section that protects employees’ right to engage in “concerted activity” for “mutual aid or protection”—the NLRB held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling, or dissuasive, effect on the exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overly broad recording policy.
According to the NLRB, taking photographs and making audio or video recordings in the workplace, as well as posting 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.” The NLRB gave the following examples of such protected concerted activity:
- 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 workplace rules; and
- Recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.
The Board also noted that there is support in its previous decisions that workers’ rights have been vindicated with recordings and that broad rules could hinder workers’ ability to gather evidence.
Not all prohibitions on recording are invalid
The NLRB acknowledged that some restrictions on workplace recordings may be lawful, depending on the type of business in which the employer is engaged. In that regard, the NLRB distinguished its 2011 decision in Flagship Medical Center, Inc., in which it held that a hospital’s policy prohibiting employees from using cameras to record images didn’t violate the NLRA because employees would reasonably interpret the rule as a legitimate means of protecting patient privacy interests and the hospital’s obligations under the Health Insurance Portability and Accountability Act (HIPAA).
Although the NLRB found that Whole Foods’ business justification (i.e., encouraging open communication in town-hall meetings and peer panels hearing termination appeals) wasn’t without merit, those circumstances were too narrow to justify such a broad, unqualified restriction on workplace recording.
As further support for its rules, Whole Foods had argued that nonconsensual recording is unlawful in many states in which it operates. The NLRB rejected that rationale, finding that the rules were still unlawful because they weren’t limited to those states and didn’t specify that the recording restrictions were limited to recordings that don’t comply with state law. Whole Foods Market, Inc., 363 NLRB No. 87.
Employer takeaway
The NLRB’s opinion makes it clear that not all rules restricting employees’ ability to record things in the workplace are invalid. So, you can restrict recordings, but you have to be careful how you do it.
All employers should scrutinize any company policies that prohibit recording in the workplace. Broad policies that aren’t narrowly tailored to protect a compelling business interest (e.g., trade secrets or confidentiality of patient information) and aren’t limited to specific times and locations necessary to protect such interests may be ripe for challenge.
Florida requires the consent of both parties to record a conversation. As a result, it appears that employers operating in states like Florida must also specify that their restrictions on nonconsensual recording are limited to the states where nonconsensual recording is illegal. It’s still unclear, however, whether the current NLRB would find compliance with state law a sufficient justification for a blanket no-recording rule.
Because this area of the law is quickly evolving and this case is now on appeal, you would be well-advised to consult with experienced labor counsel when drafting policies that restrict your employees’ ability to use recording devices in the workplace.
Lisa Berg is a Shareholder in the Labor and Employment Law Department of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., practicing in the firm’s Miami office. She may be contacted at lberg@stearnsweaver.com