Anyone with a smartphone has the ability to record sound and video. This can raise privacy concerns as well as create a record of events without others’ knowledge. For these reasons, companies may prohibit employees from making workplace recordings. If your employee handbook contains such a rule, consider giving it a second look because the National Labor Relations Board (NLRB) recently struck down “no recording” rules implemented by Whole Foods.
A three-member panel of the NLRB reviewed two workplace policies: one prohibiting employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the second prohibiting employees from recording conversations without prior management approval. The stated purpose of both policies was to foster open and honest communication, a free exchange of ideas, and an atmosphere of trust. Allowing employees to record conversations in secret, the policies explained, would deter employees from holding frank discussions about sensitive and confidential matters in the workplace.
The NLRB saw the “no recording” rules differently. In a NLRB Whole Foods Decision, the NLRB ordered Whole Foods to rescind the rules because they effectively violate employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. A majority of the NLRB panel expressed concern that the rule would prohibit employees from engaging in protected activities such as “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 majority noted that covert recordings were an essential element in vindicating Section 7 rights in many cases. The employer’s interest in encouraging open and frank communications did not override the Section 7 rights of employees.
One member of the NLRB panel dissented, arguing that employees would reasonably interpret the “no recording” rules to protect, not prohibit, Section 7 activity. However, the majority found the blanket prohibition on all recordings troubling. A witness for Whole Foods testified that the rules would apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” According to the majority, employees would reasonably read the broad and unqualified language of the rules to prohibit recording Section 7 activity.
The decision suggests that a “no recordings” rule that exempts protected activities could be valid. But where to draw the line between protected and unprotected activities remains an open question. Given the NLRB’s tendency to construe the scope of Section 7 activities broadly, a wide range of business discussions could be considered to involve protected activity and thus exempt from a “no recordings” rule. This would make the rule virtually useless. The NLRB’s decision may not be last word on recording rules, however, as Whole Foods has appealed the decision to the Second Circuit Court of Appeals.