NLRB Strikes Down Workplace Policy Banning Secret Recordings

By March 1, 2016Articles

The National Labor Relations Board ruled in a case involving Whole Foods Market that employers may not adopt broad work rules and policies that prohibit employees from recording company meetings, activities or conversations at work.  In Whole Foods Market, Inc., 363 NLRB. No. 87 (Dec. 24, 2015), the NLRB determined that company policies which prohibit employees from audio or video recording conversations and discussions in the workplace are unlawful unless there is an overriding business interest behind the ban.

According to the Board, Section 7 of the National Labor Relations Act generally protects the rights of both union and nonunion employees to secretly photograph and audio or video record managers, executives and coworkers and then post the recordings and photographs on social media, if the “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”.  Examples of subjects of lawful recordings include, according to the Board, terms and conditions of employment, company rules and policies and unsafe working conditions.

The Board did however recognize that in some states, such as California, the nonconsensual recording of conversations is a violation of state law.  However, California’s laws against unauthorized recordings only apply to confidential communications—where at least one party to the communication had a reasonable expectation of privacy.  An example would be a closed door one-on-one conversation between a manager and employee regarding the latter’s job performance.  But, California law generally does not prohibit the recording of workplace communications that do not take place in a confidential setting.

The message for employers is that before disciplining an employee for unauthorized taking and posting of photographs and recordings of business activities, it must first carefully evaluate whether the actions may constitute protected activity under Section 7 of the NLRA.  Violation of Section 7 by an employer can result in the NLRB ordering reinstatement of the discharged employee with full back pay.

To read the full Whole Foods Market, Inc. NLRB decision, click here: Whole Foods Market Inc., 363 NLRB. No. 87 (Dec 24, 2015)