Can Employees Make Recordings in the Workplace?

January 12, 2016
Carolyn Wheeler

“Employees shall have 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, and shall also have the right to refrain from any or all such activities.”Section 7 of the National Labor Relations Act (NLRA)

This part of the NLRA is at the center of an employment law matter involving the grocery chain Whole Foods—see Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago, 363 NLRB No. 87 (December 24, 2015). At issue is whether an employer’s rules prohibiting all video and audio recording in the workplace without prior management approval interfere with employees’ exercise of section 7 rights, and therefore violate section 8(a)(1). Learn more about section 8(a)(1) here.

Whole Foods’ Rules

Whole Foods’ rules categorically prohibit all recording but explicitly state that the company’s rationale is to prevent the chilling effect on expression that “may exist when one person is concerned that his or her conversation with another is being secretly recorded.” As the rule explained, “[t]his concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” Whole Foods’ global vice president acknowledged that the rule would prohibit workplace recording “regardless of whether the employee is engaged in protected concerted activity.”

The administrative law judge found Whole Foods’ rules do not reasonably tend to chill employees in the exercise of their Section 7 rights.

The Board Reverses

In a split decision, the Board reversed and held that—in light of the broad and unqualified language of Whole Foods’ rules against recording—employees would reasonably read the rules as prohibiting recording activity that would be protected by Section 7. The Board had recently held in another case that “‘[p]hotography 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.’”

The Board majority in Whole Foods identified a variety of activities protected by Section 7 that might be affected by such rules, including:

  • 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
  • Recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions

The Board majority distinguished this case from Flagstaff Medical Center, 357 NLRB No. 65 (2011), enf’d in relevant part, 715 F.3d 928 (D.C. Cir. 2013), in which a Board majority found that an employer’s policy prohibiting use of cameras in a hospital did not violate the NLRA. The Whole Foods majority concluded that the HIPPA-regulated privacy interests protected by the employer rule in Flagstaff were more pervasive and compelling than the business justification asserted by Whole Foods of shielding discussions of information about team members’ performance and discipline or criticism of store leadership that might occur at annual town hall meetings or in discussions by termination-appeal peer panels. The majority noted that it was not holding “that employers are forbidden from maintaining narrowly drawn restrictions on recording.”

The dissenting Board member, Miscimarra, was persuaded that Flagstaff is indistinguishable and that Whole Foods’ explanation of its rationale—to encourage open communication and the free exchange of ideas—undercuts the possibility of any employee reasonably interpreting the rules as prohibiting Section 7 activity.

Far-Reaching Ramifications

It is possible that Whole Foods will appeal the Board’s decision, given the strong dissenting opinion. However, Whole Foods might also elect to amend its rules to state the prohibition more narrowly and avoid violation of the NLRA.

If the decision stands, it could have ramifications beyond the unfair labor practices typically brought to the NLRB because all workers are protected by section 7 of the NLRA, whether in a unionized workplace or not. Thus, any employee planning to challenge discrimination under federal or state laws who believes certain policies or practices may be affecting other employees (such as 100% return to work rules, decisions to terminate employees during a restructuring or racist graffiti in the workplace) would be engaging in concerted activity protected by section 7, if he or she filed a charge so alleging, and therefore should equally be shielded from retaliation for making audio or visual recordings of workplace conversations or events that might support such claims.

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