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NLRB finds Whole Foods’ rule prohibiting recordings in the workplace unlawful

By Ronald Miller, J.D.

An employer’s maintenance of rules in its General Information Guide (GIG) prohibiting recording in the workplace without prior management approval was unlawful, ruled a divided three-member panel of the NLRB. Contrary to an administrative law judge, the Board concluded that the employer’s no recording rules would reasonably be construed by employees to prohibit Section 7 activity. Accordingly, the Board found that the rules would reasonably chill employees in the exercise of their Section 7 rights. Member Miscimarra filed a separate dissenting opinion (Whole Foods Market, Inc., December 24, 2015).

No-recording rules. Whole Foods’ GIG contains two rules that prohibit recording in the workplace. One policy prohibits audio and/or video recordings of company meetings. The second rule prohibits recording conversations in the workplace unless prior approval is obtained from store leadership. According to Whole Foods’ vice president for human resources, the policies have been in effect since 2001, and apply to all areas of every store and to employees and managers. He testified that an employee on worktime is precluded from recording a conversation without prior management approval, regardless of whether the employee is engaged in protected concerted activity.

Open-door policy. The company has an open-door policy that encourages employee input into their work lives. Whole Foods holds a variety of meetings at which employees have an opportunity to express their views and opinions on various topics, including town hall meetings, store meetings, and team meetings. There are also employee requests for assistance meetings (often involving confidential matters). According to Whole Foods, recording these meetings would “chill the dynamic” because workers would be reluctant to voice their opinions about store management.

An administrative law judge found that the no-recording rule did not explicitly restrict Section 7 activity because it “does not prohibit employees from engaging in protected, concerted activities, or speaking about them,” and because “[m]aking recordings in the workplace is not a protected right.” The ALJ further found that the rule “cannot reasonably be read as encompassing Section 7 activity.” Accordingly, the law judge concluded that maintenance of the rule did not violate Section 8(a)(1). However, the General Counsel asserted that recording conversations in the workplace was a protected right. Thus, he argued that employees would reasonably interpret the rules to prohibit their use of cameras or recording devices in the workplace for employees’ mutual aid and protection.

No overriding employer interest. Contrary to the ALJ, the Board determined that 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. Rather, the Board noted that its case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right. Therefore it concluded that Board law supports the proposition that photography and audio and video recording at the workplace are protected under certain circumstances.

Turning to the case at hand, the Board noted that the rules unqualifiedly prohibit all workplace recording. Moreover, it observed that the employer’s witness testified that the rules apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” In light of the broad and unqualified language of the rules and the employer’s admission as to their scope, the Board found that employees would reasonably read the rules as prohibiting recording activity that would be protected by Section 7. Accordingly, it concluded that the rules would reasonably chill employees in the exercise of their Section 7 rights.

Dissent. Member Miscimarra disagreed with the majority’s determination that Whole Foods’ no-recording rules unlawfully interfered with employees in the exercise of their Section 7 rights. Rather, he would agree with the law judge that employees would not reasonably interpret the rules to prohibit Section 7 activity. The dissent observed that the rules stated their purpose: “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust” and “to eliminate a chilling effect on the expression of views . . . especially when sensitive or confidential matters are being discussed.” Given the salutary purpose of the no-recording rules to encourage free expression, Miscimarra argued that employees would not reasonably read the rules to prohibit Section 7 activity.