No Recording Policy Violates NLRA

Whole Foods Markets v. NLRB, ____Fed. Appx.____(2d Cir. June 1, 2017) , is an important labor and employment case. Whole Foods, according to a NY Law Journal article, had a Handbook personnel policy which prohibited employees from taking audio or video recordings of "conversations, images, phone calls or company meetings" without prior approval because they "inhibit spontaneous and honest dialogue. A copy of the NYLJ article is available here. 

The NLRB and the Second Circuit held that they policy violated NLRA Section 7 rights of employees to engage in concerted activities. As the court explained:

Whole Foods’ attempt to separate the act of “recording” from conduct falling within Section 7’s protection ignores that its policies prohibit recording regardless of whether the recording is in relation to employees’ exercise of their Section 7 rights. See Rio, 362 N.L.R.B. No. 190, slip op. at 2. As written, those policies prevent “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules” without management approval. Id., slip op. at 4. 

Moreover, despite the stated purpose of Whole Foods’ policies—to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could “chill” an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert. See Lafayette Park Hotel, 326 N.L.R.B. at 825. The Board’s determination in that regard was in accordance with law.