Labor Board Clicks “Pause” on No-Recording Policy

Like many companies, Whole Foods Markets had a policy banning employees from taking photos, videos, or other recordings in the workplace. However, the National Labor Relations Board (the “NLRB”) clicked the “pause” button, striking down the policy because it has a “chilling effect” on employees’ ability to document possible violations of the National Labor Relations Act (“NLRA”).

Setting the Stage

The NLRA protects the right of employees to act collectively to improve their working conditions or terms of employment. Any employer policy that prevents employees from doing so, or would reasonably be understood by employees to prohibit protected activity, is unlawful.

Since around 2001, Whole Foods Market’s employee handbook prevented employees from taking photos or making recordings in the workplace unless they first obtained a supervisor’s permission. Employees challenged the policy because it potentially could inhibit them from either communicating with fellow workers about protected collective action or documenting certain working conditions believed to be unlawful.

The company disagreed, contending that the policy actually promoted an open, communicative workplace where employees could “speak up and speak out” without the fear of surreptitious recording devices taking down their words.

In October, 2013, an Administrative Law Judge sided with Whole Foods, finding that “making recordings in the workplace is not a protected right” and that the policy was not intended as an anti-union device.  Moreover, permitting recording would have a “chilling effect” on the willingness of employees to speak up about concerns.

NLRB Sees It Through a Different Lens

On review, the NLRB also focused on the “chilling effect” of recording in the workplace but reached an entirely different conclusion.  They first noted that photos, videos, and recordings made on smartphones have become increasingly prevalent in labor actions. The NLRB explained that past case law is “replete with examples” in which covert photography or recordings have formed the essential basis for finding a violation of the NLRA.

As a result, the NLRB voted 2-1 against the employer on the grounds that recordings in the workplace can be considered protected under certain circumstances.   Whole Foods Market, Inc., 12/24/2015, 363 NLRB No. 87

Context Matters

Are all such policies now impermissible? Not necessarily. The NLRB did reinforce a ruling in a prior case where a ban on recordings was approved.  The significant issue for consideration is the context in which the rule applies.  The former case that the NLRB referenced arose in a healthcare setting where “employees would reasonably interpret the rule as a legitimate means of protecting [patient privacy], not as a prohibition of protected activity.”

Thus, where there are other legal interests at stake, and the policy is reasonably aimed at protecting those rather than inhibiting employee speech, a policy might be acceptable.

Bottom Line

Employers with broad, sweeping bans of photo, audio, or video in the workplace should review them to be sure that they are properly focused.  For example, if the policy bans recordings of product or production methods, the NLRB my very well view such a ban as a legitimate protection of trade secrets.  However, if the policy is vague, general or overly broad, it may be read as an attempt to limit employees’ ability to document, raise or respond to workplace concerns.

Even the best-intentioned policies can have unforeseen consequences or interpretations. Be sure to evaluate all policies in the widest possible context and get good legal advice before implementing them.

For questions, please contact John Hauge at jhauge@felhaber.com.