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More from the NLRB: Employers Cannot Ban Secret Recordings, Videos or Photographs at Work

By Mark D. Nelson

A policy that prohibits employees from recording conversations without the knowledge or consent of others may violate the National Labor Relations Act. In addition, a policy that prohibits employees from taking photos at work may violate the Act too.

In a recent decision, the National Labor Relations Board ruled that Whole Foods’ ban on all recordings or photography at work was illegal because it inhibited employees in making, recording or taking pictures regarding workplace safety, discriminatory conduct or harassment, which they have the right to do under the Act. Whole Foods Market Group, Inc., 363 NLRB No. 87 (2015)

One challenged policy stated “[i]n order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust,” the use of any recording device in meetings was prohibited unless prior management approval or the consent of all parties was obtained. The employer argued that the policies at issue were specifically created to advance its “core values” and “culture” that all employees feel free to “speak up and speak out” on many issues. In addition, the employer argued that its internal appeal process for employment termination decisions would be harmed without its no-recording policy. Under this process, a terminated employee could request a review of the decision by a five-member panel of “peers,” which met and reviewed documents provided by the employee, discussed the discipline and voted on whether to uphold or overturn the termination decision. Whole Foods asserted that the no-recording policy was also essential for the handling of employee requests to the Team Member Emergency Fund. The requests often involved confidential matters, including financial need, family illness or death, or personal crisis.

In a 2-1 decision, the Board rejected Whole Foods’ arguments. The Board stated that employees would reasonably construe the rules to prohibit them from engaging in protected concerted activity. The Board noted that activities such as secretly taking pictures or making audio or video recordings in the workplace, as well as the posting of photos and recordings on social media, are protected under the Act if “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present,” and found no overriding employer interest existed.

Many states have laws regarding making, recording or taking videos of others. Some states require that all parties involved must consent to the recordings/videos (“two party consent”); other states require that only one party consent (“one party consent”), such as the person making the recording or video. Employers have the right to craft policies consistent with applicable state (and local) laws. 

Employers should consider engaging experienced counsel to ensure that any workplace recording policy complies with both applicable state and local laws, and the NLRB’s evolving standards.