Whole Foods Stores Are For Shopping And Secretly Recording, Says The NLRB

Randi Klein Hyatt
Randi Klein Hyatt
01/08/2016

On December 24, 2015, the National Labor Relations Board (NLRB) invalidated two employee handbook policies that prohibited employees from recording conversations, phone calls, images or meetings in the workplace. In Whole Foods Market, Inc. and United Food and Commercial Workers, et al., 363 NLRB No. 87 (2015), the NLRB found that requiring employees to obtain management’s approval before recording certain aspects of the work environment violated Section 8(a)(1) of the National Labor Relations Act (NLRA) because employees would reasonably interpret such rules to prohibit recording protected union activities.

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees’ exercise of their rights under Section 7 of the NLRA, which includes the right to engage in protected concerted activity.  A rule may violate Section 8(a)(1) if: (1) the employees reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule was applied to restrict the exercise of Section 7 rights.

In the first policy at issue, Whole Foods prohibited employees from recording conversations, phone calls, images or company meetings with any recording device without approval from management or without the consent of all parties to the conversation.  The purpose of this policy was to “encourage open communication . . . and an atmosphere of trust.”  The second, related policy prohibited recording conversations with any recording device (cell phones, digital cameras, etc.) without prior approval.  The stated purpose of this policy was 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.”

Despite stating these purposes, the NLRB found that Whole Foods’ “broad and unqualified language” would lead employees to reasonably interpret the policies as infringing on Section 7 activity because the policies applied regardless of the type of activity recorded or the purpose of the recording.  The NLRB noted that it recognizes several forms of recordings as protected activity if employees are acting in concert and no overriding employer interest (such as propriety of trade secrets) exists.  The NLRB then listed a number of examples, including recording images of picketing, documenting unsafe working conditions, and recording evidence for later use in administrative or judicial proceedings.

Under the decision, Whole Foods must now rescind these policies and post a notice at every store location to inform employees of the change.  This decision serves as a reminder for employers to carefully inspect rules that prohibit, or broadly limit, recording in the workplace.  Sweeping, overly broad policies that fail to allow protected activity under the NLRA may be ripe for challenge.

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