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Can an Employer Have a Policy Prohibiting All Recording in the Workplace?

In my years of reviewing handbooks and company policies, it is not uncommon to see a policy that prohibits or restricts in some way an employee recording conversations or taking pictures in the workplace. For employers that have such policies, beware! Let’s take a look at a recent 2nd Circuit Court of Appeals decision that was issued on June 1, 2017 and the story of Whole Foods Market. I will say this story has been winding its way through the legal system for quite a few years! The initial decision was issued in October 2013.

Whole Foods Market (Whole Foods) had a couple of policies in its General Information Guide, which is their version of an employee handbook that applied to all employees, which addressed recordings. Here are excerpts from them:

Team Meetings:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.

Team Member Recordings:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is 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. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

When reading these excerpts and from the testimony provided it is clear that the intent of these rules was consistent with company culture of wanting open dialogue and wanting an environment where employees felt comfortable being honest and open.

Unfortunately for Whole Foods, the National Labor Relations Board (NLRB) and the 2nd Circuit Court of Appeals did not find in their favor. The policies were found to violate the National Labor Relations Act (NLRA).

Section 7 of the NLRA guarantees employees the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA states it is “an unfair labor practice for an employer …. To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].” When looking at workplace rules the NLRB will examine whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights. The “Lutheran Heritage” test states that “even if a rule does not explicitly restrict protected activity, the Board has determined that the rule will constitute a violation if: (1) employees would reasonably construe the language to prohibit [protected] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected] rights.” The NLRB and Court noted that the Whole Foods policies as written 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. The NLRB noted that photography and audio or video recording in the workplace, as well as posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. The Court noted that the desire for open communication is not a sufficient employer interest to limit Section 7 rights. Thus, at the end of the day the policies were found to be overbroad and violations of the NLRA.

You may be wondering what is an employer to do. An employer does have to allow recording devices unless there is an overriding employer interest. The NLRB has found overriding employer interests when there may be other laws that restrict disclosure of information. For instance, if your organization is in a health care provider, HIPAA prohibits the disclosure of patient information and such a restriction would apply to recordings.

When drafting a recording policy it is important to not ban all recordings. In the policy be very specific about what may not be recorded. When looking at what you are prohibiting make sure there is a compelling interest that is being protected such as privacy rights.

Now is the time to review any policies you have that include any bans on recording in the workplace!

As we approach a scorching weekend I was reflecting back to cooler weather on our trip to Alaska last year so that brings me to the picture I have included this week. It is of Carlanna Lake in Ketchikan. The area was spectacular.

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