On June 1, the Second Circuit Court of Appeals affirmed the National Labor Relations Board’s 2015 ruling in Whole Foods Market Group, Inc., 363 NLRB No. 87 (2015), regarding the Company’s rules banning employees from making workplace recordings.
Whole Foods maintained two written rules banning employees from recording conversations, phone calls, images, or company meetings without authorization. The Board found that those rules violated employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”) to make audio and visual recordings when acting in concert in the workplace. Whole Foods argued that the policies were designed to eliminate the chilling effect on the employees’ expression of views that would exist if they were concerned about being recorded. Whole Foods sought to protect spontaneous and honest dialogue. Although the Board has recognized that employers may have an overriding interest to overcome the employees’ right to make workplace recordings (for example, the Board had previously found that a no photography policy protecting medical patients’ privacy rights was an overriding interest), it found Whole Foods’ justification failed to rise to that level.
Before the Second Circuit, Whole Foods continued to argue that its policies protected employee rights by encouraging them to speak freely. Nonetheless, the Court agreed with the Board and found that the bans are overbroad because they are “not limited to controlling those activities in which employees are not acting in concert.” However, the Second Circuit acknowledged that Whole Foods could “craft a policy that places some limits on recording” without running afoul of the NLRA, therefore meeting its interests by “narrowing the policies’ scope.” To do so, Whole Foods would have to redraft its policies to explicitly show that the company does not intend to prohibit all recordings, including recordings protected by Section 7, but specifically detail the non-protected recordings it intends the policies to cover.