With the advance of mobile technologies, employers are faced with the growing probability that employees are utilizing these devices to record conversations or other conditions in the workplace. Currently, approximately 38 states, including New York and New Jersey, have laws which permit a party to surreptitiously record a conversation if one party to the conversation has given permission to be recorded while other states including Pennsylvania, Connecticut, and Florida, require all parties involved in the recording to consent. These laws do not, however, touch upon an employer’s ability to regulate recordings in the workplace, and employers have generally assumed they were free to enact policies prohibiting or limiting recordings by employees. However, in a recent decision the National Labor Relations Board (the “NLRB” or “Board”) held that it is a violation of Section 7 of the National Labor Relations Act (the “Act”) for an employer to maintain a policy that restricts or prohibits employees from recording conversations with management without prior management approval. Section 7 gives employees the right to freely discuss terms and conditions of employment and to act in concert with one another for their mutual aid and protection.
The decision, Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919, et al, arose out of a policy in Whole Foods Market’s General Information Guide prohibiting employees from recording “phone calls, images, and company meetings with any recording device…” unless prior approval was received from management, or unless all parties to the conversation consented to the recording. Whole Foods’ no-recording policy was aimed at eliminating the “chilling effect” on the free expression of views that would otherwise arise if employees believed or suspected that they were being recorded on a device.
The NLRB took the opposite view, concluding that policies prohibiting employees from recording in the workplace without prior approval by management violate the Act because that policy has a “chilling effect” on the employee’s rights to engage in protected concerted activity under the NLRA. According to the NLRB, protected conduct that might be negatively affected by prohibitions on recording include, for example, recording of images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment (such as a meeting to discuss potential discipline), documenting inconsistent application of employer rules, or documenting evidence for later use in judicial or administrative actions. The NLRB determined that photography and recording in the workplace is an “essential element” in preserving and vindicating labor rights under the Act. Whole Foods was thus ordered to withdraw its policy and post notice of its violation.
It is likely that this case will be appealed through the federal courts, and possibly to the United States Supreme Court. However, until the law has been settled by the courts, employers should confer with employment counsel before implementing policies that could stifle employees’ rights to organize, including policies that forbid recording or photography in the workplace without prior consent. Employers with existing “no-recordings in the workplace” policies should do likewise to ensure that these policies do not run afoul of NLRA protections.