Whole Foods' No-Recording Policy Unlawfully Overbroad

​An employer rule that prohibits any audio and video recordings by employees without management approval violates the National Labor Relations Act (NLRA) because employees would reasonably construe that the rule prohibits them from exercising protected rights, according to the 2nd U.S. Circuit Court of Appeals.

The NLRA guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and thus a work rule that employees would reasonably understand as prohibiting the exercise of their rights under the NLRA is unlawful.

Whole Foods Market Inc. maintained two rules prohibiting recording in the workplace:

• "It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device ... unless prior approval is received from a store/facility team leader ... or unless all parties to the conversation give their consent."
  
• "It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device ... unless prior approval is received from your store or faculty leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded."
  

The rules were distributed to all employees companywide. The general counsel of the National Labor Relations Board (NLRB) argued that these recording bans were unlawful because employee recording in the workplace was, in some instances, activity protected under the NLRA.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Whole Foods defended the rules as necessary to encourage employees to speak out on issues affecting them in a variety of situations, including company town hall meetings, store meetings and team meetings held to discuss work issues and complaints. According to Whole Foods, employees would not candidly express their opinions about store management in these settings if there was a risk of being recorded.

Although an administrative law judge initially ruled in favor of Whole Foods, on appeal the NLRB held that the rules violated the NLRA, and the 2nd Circuit affirmed. The rules were determined to be unlawful because employees would reasonably understand them to prohibit activities protected by the NLRA.

The 2nd Circuit, in agreement with the NLRB, first held that creating audio or visual recordings can, in certain instances, be protected activity under the NLRA. For example, photographing employee picketing, documenting unsafe workplace equipment or hazardous working conditions, recording and publicizing discussions about terms and conditions of employment, or documenting inconsistent applications of employer rules are all instances where creating a recording may constitute protected activity.

In addition, because the rules prohibited any recording without management approval, and without exceptions for protected activity, they would reasonably dissuade employees from engaging in protected activity. Both the 2nd Circuit and the NLRB acknowledged the employer's interest in promoting open dialogue on sensitive matters as the stated motivation for its recording ban. However, that rationale was insufficient to justify the sweeping prohibitions reflected in these rules. Thus, the 2nd Circuit held that the rules were unlawfully overbroad and affirmed the NLRB's order directing the employer to rescind them.

Whole Foods Market Group Inc. v. NLRB, 2nd Cir., Nos. 16-0002-ag, 16-0346 (June 1, 2017).

Professional Pointer: Workplace policies must be carefully crafted to avoid any restrictions on employees' ability to engage in activity protected under the NLRA, such as communicating about their working conditions. Even policies designed to promote employee welfare may violate the NLRA.

Amanda M. Baker is an attorney with Collazo Florentino & Keil LLP, the Worklaw® Network member firm in New York City.
 

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