I recently talked about the increasing incidence of employees superstitiously recording their supervisors or managers during meetings where performance issues or discipline are being discussed, and how some employers had adopted policies prohibiting such recordings in the workplace.

While courts in the past had held that employers could discipline employees for violating these policies, I noted that the National Labor Relations Board (“NLRB”) had taken the position that such policies could reasonably be construed by employees to ban protected concerted activity under the National Labor Relations Act, even though the employer might have had other legitimate reasons for enacting such a policy.

We now have one federal appellate court that has blessed the NLRB’s position. On June 1, 2017, the Second Circuit affirmed the NLRB’s decision that Whole Foods’ policies barring employees from making workplace recordings violated Section 7 of the NLRB because employees could reasonably construe those policies as specifically preventing employees from such things as “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.”

It bears noting that, because Whole Foods failed to raise the issue before the ALJ or the Board, the Second Circuit did not consider Whole Foods’ challenge to the legal test that the Board applied when reaching its decision, namely, that even if a rule does not explicitly restrict protected activity, it could constitute a violation if “employees would reasonably construe the language to prohibit protected activity.” As long as that test stands, any policy that generally prohibits recording in the workplace is likely to be problematic unless it specifically addresses subjects of recording that are clearly not protected by Section 7, such as a hospital worker’s conversation about patients or a banking employee’s conversation about a particular customer.