To Record or Not to Record, That is the Question

Miller & Martin PLLC Alerts | January 14, 2016


by Brad Harvey

Eliminating any possibility that it might wind up on employers' "nice list," the National Labor Relations Board (NLRB) ruled on Christmas Eve that a Whole Foods policy featuring an "absolute prohibition" on employees "taking photographs, audio-recording or video-recording in the workplace without management consent and approval" violated the National Labor Relations Act (NLRA).

In a divided two-to-one opinion, the majority of the Board ruled that Whole Foods employees reasonably could interpret this policy as prohibiting their use of recording devices to further protected concerted activities, "such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment-related matters." By contrast, the dissenting opinion maintained that "a reasonable employee would understand that [Whole Foods'] purpose in maintaining these rules is to promote open, free, spontaneous and honest dialogue – including dialogue protected by Section 7 [of the NLRA] – not to prohibit Section 7 activity."

In light of this ruling, employers should review their policies prohibiting recordings in the workplace. Notably, the Board did not rule that a more narrowly-targeted policy, such as one prohibiting recording in certain areas to protect confidential and proprietary information, would automatically violate the Act. Another practical rule employers could have is to prohibit cell phones altogether in work areas during working time based on the risk of distraction or other safety issues they could cause.

The ruling also serves as a reminder that management should conduct itself in the workplace as if it is being recorded at all times. In Tennessee, Georgia and Alabama, among many other states, it is not illegal for one person to record a conversation they are a part of without disclosing that they are doing so to the other participants. Ironically, we have seen several cases in which a plaintiff's "secret recordings" have backfired and actually supported the employer's defense. Plus, juries generally don't like the idea of "clandestine recordings."

As always, should you have any questions regarding this update, or other NLRB-related issues, please feel free to contact Brad Harvey or any other member of our Labor & Employment Law Practice Group.

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