While employees making audio or video recordings of others in the workplace have long concerned employers, companies usually refrain from banning employee recording, uneasy about potentially infringing on employees’ rights to engage in protected concerted activity.A recent case illustrates the analysis the National Labor Relations Board uses to scrutinize a workplace policy that restricts employee recording workplace conversations.

In Whole Foods Market, Inc., Case No. 1-CA-96965 (10/30/13), Administrative Law Judge Steven Davis found that the company’s nationwide policy banning employee recording of workplace “conversations” was lawful.  The policy’s stated purpose was “to eliminate a chilling effect… when one person is concerned that his or her conversation with another is being secretly recorded.”  The prohibition otherwise complements the company’s well-established and pro-active open-door policy.  The ALJ found the company has a legitimate business interest in promoting a culture encouraging employees to “speak up and speak out.”

The NLRB’s General Counsel argued the policy was unlawful because employees would reasonably believe it prohibited them from engaging in protected concerted activities – including recording arguably unlawful statements by supervisors.  However, this   argument was rejected based on the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). A policy is unlawful if it explicitly restricts activities protected by the NLRA, or, if (1) employees would “reasonably construe” it to prohibit protected activity; (2) it was promulgated in response to union activity; or (3)  it has been applied to restrict Section 7 rights.

Judge Davis made the refreshingly plain observation that “making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regulating employee conduct.”  Further, he found the no-recording rule did not expressly restrict protected activity, was not a response to organizing, was not used to inhibit protected conduct, and that the plain wording of the rule (promoting the employer’s established policies promoting open communications) would not be reasonably construed to ban protected activity.

In so finding, Judge Davis was informed by the Board’s holding in Flagstaff Medical Center, 357 NLRB No. 65 (2011). The employer’s rule banning the recording of images of hospital patients and facilities was upheld because the employer’s interest in maintaining patient privacy was unquestionable, and thus, hospital employees would reasonably interpret the rule as addressing legitimate privacy concerns, not a restriction on Section 7 activity.

Whole Foods (which could be reviewed and reversed by the Board) is consistent with Flagstaff Medical Center.  However, employers should note that these workplace restrictions were upheld solely because the employers had unequivocally established legitimate business interests, and the employee restrictions were tailored to advance those specific interests.  Employers are urged to consult with counsel before developing anti-recording policies.