Does your Employee Handbook prohibit recordings? If so, can your employees reasonably construe the work rule to restrict their right to talk about their working conditions or to engage in group activity (i.e., concerted, protected activity)? Rules in employee handbooks prohibiting recordings are more common than one may think. For example, in a recent case reviewed by the National Labor Relations Board ("NLRB"), Whole Foods had a rule in its employee handbook that states that it is a violation "to record conversations, phone calls, images or company meetings with any recording device, unless prior approval is received" from a supervisor or "all parties…give their consent." See Whole Foods Market Group, Inc., 363 NLRB No. 87 (Dec. 24, 2015). To Whole Foods, the rule was an important and logical part of its open door policy and its efforts "to eliminate the chilling effect on the expression of views that may exist," if an employee believes that his conversation is being recorded. At first glance, the Whole Foods rule may seem reasonable to employers. After all, isn't the rule protecting employees and their ability to engage in free speech?
Unfortunately, according to the National Labor Relations Board ("NLRB") the answer is "no" where the prohibition on recording, like in the Whole Foods case, is overly broad. Under Section 7 of the National Labor Relations Act, employees have the right to take photographs and make recordings when they are acting in concert for their mutual aid and protection. For example, employees have the right to record union picketing, unsafe working conditions, discussions they have with co-workers and to record evidence to be used in court cases. In the Whole Foods case, the NLRB cited a long history of decisions supporting an employee's right to make recordings, including decisions in a number of prior Presidential administrations.
The NLRB's decision with regards to the Whole Foods rule does not mean, however, that a company cannot restrict recordings at all. Rules prohibiting employees from making recordings may be allowed if they are "narrowly drawn." An employer can restrict recordings that are not "part of, or in furtherance of, a course of group action," do not initiate or induce group action, or do not enforce provisions of a union contract. A company may have a rule that restricts a recording made only for an individual purpose. For example, if an employee brings a recording device into a disciplinary meeting, a company may have the right to tell that employee that he either participates in the meeting without recording it, or the meeting will be just short enough to give the employee the notice of discipline. A company may also have a compelling reason to prohibit some recordings, such as to protect patient privacy in a hospital. A company may have a non-recording rule to protect the company's intellectual property.
Therefore, all human resource professionals should examine rules prohibiting recordings in their employment handbooks in light of the NLRB's Whole Foods decision and redraft them to meet the NLRB's requirements.