Almost everybody has a smart phone and almost every smart phone is capable of recording conversations in the workplace.  Is it lawful for employers to prohibit electronic recordings by employees in the workplace?  

Since at least 2001, Whole Foods Market has maintained a work rule throughout the Company, including its grocery stores, that prohibits employees from secretly recording conversations without prior approval of management.  Specifically, the rule states as follows:

  • 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 to 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.

Violation of this policy will result in corrective action up to and including discharge.

Based on unfair labor practice charges filed by two unions, the General Counsel of the National Labor Relations Board (“NLRB”) issued a complaint against Whole Foods alleging that its no-recording rule violates the National Labor Relations Act (the “Act”).  More particularly, the General Counsel alleged that the rule is overbroad and “could be reasonably interpreted by employees to prevent them from recording statements or conversations that involve activities permitted by . . . the Act.”  Whole Foods Market, Inc., JD(NY)-50-13 at 6 (Oct. 13, 2013).  Further, the General Counsel alleged “that the rule broadly prevents the employee from recording conversations related to protected activities including allegedly unlawful statements made by supervisor, and recording evidence to be presented in administrative or judicial forums in employment related matters.”

After a trial, an Administrative Law Judge (“ALJ”) of the NLRB held that Whole Foods’ no-recording rule does not violate the Act.  The ALJ held, among other things, that “[t]he rule does not prohibit employees from engaging in protected, concerted activities, or speaking about them.  It does not expressly mention any Section 7 activity.  The only activity the rule forbids is recording conversations or activities with a recording device.  Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations.”  As to the General Counsel’s argument that the rule limited the ability of employees to gather evidence of illegal employer behavior, the ALJ stated, “I agree, but the employee may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters.  Only electronic recordings of conversations are prohibited.”  “The rule itself clearly explains its purpose – ‘to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded, and that recordation may inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.’”  That explanation is a clear, logical and legitimate description of the reason for the rule.”

The Whole Foods Market decision is a rare victory for employers attempting to defend work rules.  Employers are cautioned, however, that this ALJ decision is likely to be appealed to the full Obama Board and possibly a Circuit Court of Appeals, and thus may not survive appellate review.  Further, ALJ decisions may or may not be persuasive authority to NLRB Regions and it must be remembered that the General Counsel did in fact issue a complaint in this case.