NLRB Decision Permits Employer Policy That Banned Workplace Recordings

In a recent decision by an Administrative Law Judge for the National Labor Relations Board, an employer’s no-recording policy was upheld as not violating the rights of employees to engage in protected concerted activity under the National Labor Relations Act (“the Act”). More after the break…

In Whole Foods Market, Inc., (Case No. 1-CA-096965, Oct. 30, 2013), a union challenged the following policy which prohibited workplace 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 to 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.

Violation of this policy will result in corrective action up to and including discharge.

During the proceedings, the Company explained that although the policy was silent as to its scope, the policy was intended to apply to all levels of management and employees on work time, and to all areas of the Store, including the parking lot and area in front of the Store.  The Company stated that the policy did not apply to employees while on break time, but it would prohibit an employee’s recording of picketing in front of the store.   The Company provided evidence that the policy was not enacted in response to union activity, but put in place to foster one of its core values that employees have a voice and are free to “speak up and speak out” on many issues.

The ALJ concluded that the making of recordings in the workplace is not a protected right under the Act, and is subject to an employer’s right to make lawful rules regulating employee conduct in its workplace.  The ALJ further held that the policy did not prohibit employees from engaging in protected, concerted activities, as the policy only prohibited recording conversations and not speaking to other employees about work-related issues.

Additionally, the ALJ rejected the argument that the policy could reasonably be interrupted by employees to prevent them from recording conversations that involve protected activities or to preclude employees from using social media to communicate working conditions through videos obtained at the workplace.  The ALJ found that Section 7 of the Act protects “organization rights … rather than particular means by which employees may seek to communicate.”  The decision further stated that the plain language of the policy cannot be reasonably read to chill Section 7 activity and employees would not reasonably fear that the Company would us the rule to punish them for engaging in protected activity.

In light of this decision, employers may consider consulting with their attorney to implement a non-recording policy.

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