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January 15, 2016

Broad Rules Prohibiting Employees From Recording In The Workplace May Violate The National Labor Relations Act

The National Labor Relations Board (the “Board”) recently determined that an employer’s rule prohibiting the recording of conversations in the workplace without prior approval from management violated Section 8(a)(1) of the National Labor Relations Act (the “NLRA”).  Whole Foods, Inc., NLRB Nos. 01-CA-096965, 13-CA-103533 and 13-CA-103615 (2015).

Previously, in Flagstaff Medical Center, 357 NLRB No. 65 (2011), the Board held that employers are permitted to regulate employee recording in the workplace, but any such rules must be narrowly tailored to protect legitimate employer interests.  In Whole Foods, Inc., the Board clarified that a general policy prohibiting employee recording in the workplace without prior approval is overbroad, and violates the National Labor Relations Act.

Whole Foods’ rules flatly prohibited recording in the workplace without prior approval from management.  Whole Foods argued that its rules were justified because the potential for surreptitious recording would negatively impact its “core values” and “culture” of open and honest communications in the workplace.  The Board disagreed, finding that Whole Foods’ rules could reasonably be interpreted by employees to prohibit them from engaging in protected activity.  Specifically, the Board reasoned that such rules could unlawfully prohibit employees from: (1) recording images of protected picketing, (2) documenting hazardous working conditions, or (3) documenting various issues relating to terms and conditions of employment.  The Board also held that Whole Foods’ general policy in favor open communication was insufficient to justify its prohibition on all recording in the workplace.  Whole Foods has appealed the Board’s decision.

Take Away for Employers

Based on the Whole Foods Inc. decision, it is clear that the Board will likely find broad no-recording rules in the workplace to be a violation of the NLRA unless the employer can establish a valid overriding interest justifying such rules.  Employers can also anticipate that any such rules will be closely scrutinized by the Board.  Accordingly, employers should review policies that prohibit recordings in the workplace, and if so, whether those policies should be revised in accordance with the Whole Foods decision.  We remind employers that the Board has jurisdiction over both union and non-union workplaces. 

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If you have any questions regarding this decision by the Board or related workplace policies, please do not hesitate to contact us.