Hunton Employment & Labor Perspectives

On December 24, 2015, the National Labor Relations Board (“NLRB” or the “Board”) held that rules in Whole Foods’ General Information Guide prohibiting unapproved tape and video recording in the workplace violate Section 8(a)(1) of the National Labor Relations Act (“NLRA” or the “Act”).

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees’ exercise of their Section 7 rights, including the right to engage in protected concerted activity. If the rule in question explicitly restricts activity protected by Section 7, it is automatically unlawful; if it does not, the rule violates Section 8(a)(1) only if: (1) the employees would reasonably construe the rule’s language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule was applied to restrict the exercise of Section 7 rights.

In its decision, Whole Foods Market, Inc., 363 NLRB No. 87, the Board considered the following related rules:

1. “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…or unless all parties to the conversation give their consent.”; and
2. “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 facility leadership.”

The purpose of these rules was clearly spelled out in the company’s General Information Guide:

“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. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”

Despite the rules’ clearly delineated purpose, a majority of the Board found that an employee could reasonably interpret these rules to infringe upon his ability to engage in protected concerted activity because the rules applied regardless of the type of activity recorded or the purpose behind the recording. The majority distinguished the instant case from Flagstaff Medical Center, 357 NLRB No. 65 (2011), in which the Board had found that an employer policy prohibiting the use of cameras in a hospital setting did not violate the Act. According to the Board, employees could not have reasonably understood the rule in Flagstaff to prohibit Section 7 activity in light of its rationale—protecting patients’ privacy interests. Whole Foods’ rationale—protecting employees’ privacy interests and encouraging open communication—apparently did not have the same effect.

Member Miscimarra dissented from the majority’s opinion. In his dissent, Miscimarra criticized the Board’s logic on several fronts. First, he explained that similar no-recording rules have been embraced by the Board in other contexts. More specifically, the Board has repeatedly held that parties are prohibited from insisting on a recording or verbatim transcription of collective-bargaining negotiations or grievance meetings. In these decisions, the Board has consistently opined that the presence of a reporter or recording device may inhibit free and open discussions—the same rationale advanced by Whole Foods. Secondly, Miscimarra noted that the rules in question only prohibited a limited scope of protected activity—as making an audio or video recording is often a solitary activity and, even when undertaken by two or more individuals, can concern matters other than mutual aid or protection. Most importantly, Miscimarra believed that employees would reasonably read Whole Foods’ rules to safeguard their rights to engage in union-related and other protected concerted activity, not to prohibit Section 7 activity.

The Board majority, however, disregarded Miscimarra’s arguments and instead ruled in favor of a broad new rule: Absent a sufficient rationale, rules that prohibit audio or video recording at the workplace are unlawful. Unfortunately, the Board has failed to provide meaningful guidance to help employers determine what rationales are “sufficient” to justify such rules; while protecting hospital patients’ privacy is sufficient, maintaining employee privacy and encouraging open dialogue in the workplace are not. As a result, all employers who currently prohibit recordings in the workplace should consider reviewing their policies in light of the Board’s decision.