Rule Prohibiting Recording in the Workplace Without Prior Management Approval Unlawful: NLRB | Practical Law

Rule Prohibiting Recording in the Workplace Without Prior Management Approval Unlawful: NLRB | Practical Law

In Whole Foods Market, Inc., the National Labor Relations Board (NLRB) held that Whole Foods Market's rules banning employees from using audio, video, and other recording equipment to record company meetings and workplace conversations without management's permission were unlawfully overbroad and violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

Rule Prohibiting Recording in the Workplace Without Prior Management Approval Unlawful: NLRB

by Practical Law Labor & Employment
Law stated as of 01 May 2018 • USA (National/Federal)
In Whole Foods Market, Inc., the National Labor Relations Board (NLRB) held that Whole Foods Market's rules banning employees from using audio, video, and other recording equipment to record company meetings and workplace conversations without management's permission were unlawfully overbroad and violated Section 8(a)(1) of the National Labor Relations Act (NLRA).
On December 24, 2015, in Whole Foods Market, Inc., the panel (Board) heading the NLRB's judicial functions held in a 2-1 decision that the supermarket chain's rules banning employees from using phones, digital cameras, and other audio-visual equipment to record company meetings and workplace conversations without management's permission were unlawfully overbroad. The Board found that employees would reasonably construe both rules as prohibiting Section 7 activity. (363 N.L.R.B. No. 87 (Dec. 24, 2015).)

Background

Whole Foods maintained the following two rules in its General Information Guide that was distributed to all employees:
Team Meetings. In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company 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. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.
The NLRB General Counsel filed a complaint with the NLRB challenging the rules as unlawful. An Administrative Law Judge (ALJ) decided that the Team Member Recordings rule was lawful. The ALJ did not address the Team Meetings rule. The NLRB's General Counsel excepted to the ALJ's decision.

Outcome

The Board majority (Chairman Pearce and Member Hirozawa) held that:
  • Whole Foods' rules prohibiting recording without management's approval violated Section 8(a)(1) of the NLRA because:
    • they were unlawfully overbroad; and
    • employees would reasonably construe both rules as prohibiting Section 7 protected activity.
    (Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004).)
  • Rules addressing workplace recording must be narrowly drawn so that employees will not reasonably construe them as prohibiting Section 7 activity.
The Board majority noted that:
  • Workplace video and audio recording is protected if:
    • employees are acting in concert for their mutual aid and protection; and
    • the employer does not have an overriding interest in restricting the recording.
    (Rio All-Suites Hotel and Casino, 362 N.L.R.B. No. 190 (2015).)
  • Workplace recording is protected by the NLRA under certain circumstances, including to document:
    • picketing activities;
    • unsafe or hazardous working conditions;
    • discussions about employment terms and conditions; or
    • an employer inconsistently applying workplace rules.
The Board majority found that:
  • Whole Foods' workplace recording rules were unlawfully overbroad because they:
    • prohibited all workplace recording;
    • failed to distinguish between Section 7 protected recording and unprotected recording; and
    • required employees to obtain management's permission before recording on non-work time.
  • Whole Foods' stated rationales for the rules (promoting "open communication" and fostering trust within the workplace) were understandable but applied only under narrow circumstances and, therefore, did not cure the rules from being overbroad.
  • The portion of the Team Meetings rule allowing for the recording of conversations if all parties give their consent would not affect whether employees viewed the rule as covering protected concerted activity.
  • The dissent's characterization of workplace recording by employees often being a "solitary act" unlikely to involve concerted activity was flawed.
  • The dissent's reliance on a Board decision upholding a hospital's prohibition on using cameras for recording in a hospital was not useful because that case was distinguishable. It involved patient privacy concerns and employees would not reasonably view the rule as prohibiting protected activity (see Flagstaff Medical Center, 357 N.L.R.B. No. 65 (2011).)
Member Miscimarra dissented, noting that the rules should be found lawful because:
  • Whole Foods had a legitimate, substantial justification for the rules and clearly intended them to encourage open communication, including communication protected by Section 7.
  • Employees would reasonably interpret the rules as intended to safeguard their rights to engage in protected concerted activity.
  • The majority's application of Lutheran Heritage Village was incorrect because in that case, the Board stated that a rule would not be invalidated if it did not refer to Section 7 activity simply because employees might interpret it as encompassing Section 7 activity (Lutheran Heritage Village-Livonia, 343 N.L.R.B. at 647).
  • Recording in the workplace:
    • is usually a solitary, not concerted, activity; and
    • only implicates a narrow set of protected activities.

Practical Implications

The NLRB's decision in Whole Foods reflects its continued close scrutiny of workplace recording rules. The Board is inclined to view such rules as restricting employees' ability to engage in protected concerted activities. In light of the Board's decision, employers should expect the NLRB to pan rules that restrict employees' use of cameras, camera phones, and other audio-visual recording devices in the workplace, unless the restriction is:
  • Expressly tied to particularized employer interests such as maintaining privacy for the employer's customers or clients.
  • Narrowly drawn to prohibit recording only in specific limited situations or circumstances.
UPDATE: In an unpublished Summary Order dated June 1, 2017, the Second Circuit enforced the NLRB's decision holding that Whole Foods violated Section 8(a)(1) of the NLRA by imposing overbroad rules banning employees from all recording without manager approval (Whole Foods Market, Inc. v. NLRB, (2d Cir. June 1, 2017).)
UPDATE: The Board denied the employer's motion for reconsideration of its December 24, 2015 decision, noting that after the Second Circuit enforced that decision, the Board lacks jurisdiction over the case (366 N.L.R.B. No. 77 (May 1, 2018)).