In the modern workplace, where every employee’s cell phone is a recording device, a recent court ruling may cast serious doubts as to the validity of employer policies banning recording in the workplace.

The United States Court of Appeals for the Second Circuit has upheld a ruling against Whole Foods Market that its handbook policy, prohibiting employees from recording conversations in the workplace, violates the National Labor Relations Act (“NLRA”) by inhibiting or “chilling” employees’ rights under Section 7 of the Act to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” [Whole Foods Mkt. Grp., Inc. v. NLRB (2nd Cir. 2017)] In light of the Second Circuit affirming the earlier ruling by the National Labor Relations Board (“NLRB”), employers who have similar handbook policies may find it advisable to review and possibly revise such policies.

The supermarket chain’s stated purpose of the policy was to “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust . . . .” Whole Foods’ employee handbook policy was as follows:

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.

In a December 24, 2015 ruling by the NLRB, the policy was held to violate Section 7 of the NLRA, with the NLRB opinion noting:

Photography and audio or video recording in the workplace, as well as the 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. Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

In upholding the NLRB ruling against Whole Foods, the Second Circuit held that despite the stated benign purpose of the Whole Foods’ policy—to promote employee communication in the workplace—the NLRB reasonably concluded that the policy's overbroad language could “chill” an employee’s exercise of their Section 7 rights because the policy as written was not limited to situations not involving protected rights. As previously discussed in eLABORate, in recent years, the NLRB has taken a very aggressive stance toward a variety of handbook policies that are commonly utilized by employers nationwide.