The National Labor Relations Board (NRLB) recently held that Whole Foods Market (“Whole Foods”) violated Section 7 of the National Labor Relations Act (NLRA) by having rules prohibiting recording in the workplace without prior management approval.  The policies at issue applied to all employees and prohibited recording conversations, phone calls, images or company meetings with any recording device unless the individual received prior approval from management.  The policies also stated that the purpose of the rule was to promote open communication and dialogue.

The NLRB held that the policies were unlawfully overbroad and could reasonably be interpreted by employees to prohibit photography and audio and visual recordings that are protected by Section 7 of the NLRA as long as the “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”  The NLRB identified the following examples of protected activity that could reasonably be interpreted to be prohibited under the policies:

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

The NLRB reasoned that the policies were unqualified in their prohibition of recording and failed to differentiate between recordings protected by Section 7 and those that were unprotected.  The NLRB also found that the employer’s statement of intent to promote open communication of dialogue did not cure this overbreadth.  Further, the NLRB noted that the policies were  unlawfully overbroad because they required an employee to obtain the employer’s permission before engaging in recording activities on nonwork time.

The NLRB distinguished Whole Foods’ policies from a prior decision that a hospital’s policy prohibiting the use of cameras for recording images did not violate the NLRA.  In the previous case, the NLRB found that employees would reasonably interpret the rule as a legitimate means of protecting patient privacy interests and the hospital’s HIPAA obligations.  In contrast, the business justification suggested by Whole Foods was found to be “not nearly as pervasive or compelling as the patient privacy interest.”

All employers (not just those with a unionized workforce) should review and closely scrutinize their existing policies regarding any restriction on audio and visual recordings.  The policy must explicitly describe the business justification for the recording restriction and provide explicit examples of the prohibited subjects of recording in order to be lawful.

If you have any questions regarding the issues raised in this client alert, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.