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Recently, the National Labor Relations Board (NLRB) held that Whole Food Market’s blanket policy prohibiting employees from recording conversations violated section 8(a)(1) of the National Labor Relations Act (NLRA). That section makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed under section 7” of the act. Section 7 guarantees employees the right to “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This was the original finding of the administrative law judge, which in turn was affirmed by the NLRB and then the Second Circuit.

The policy at issue was quite broad and prohibited employees from recording “conversations, phone calls, images or company meetings with any recoding device (including but not limited to cellular phone, PDA, digital camera, etc.) unless prior approval is received from” management. The policy further applied to all areas of the store, including the parking lot and areas in front of the store. Indeed, in attempting to defend the policy, Whole Foods’ global vice president testified that the policy applied regardless whether employees were engaging in activity under the NLRA. 

In affirming the NLRB finding, the Second Circuit seemed to seize on the above testimony in stating that Whole Goods policies “prohibit recording regardless of whether the recording is in relation to employees’ exercise of their section 7 rights.” The court went on finding this blanket prohibition could include “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous conditions,” and other forms of protected activity. (See Whole Foods market Group, Inc. v. National Labor Relations Board, Case No. 16-0002-ag, 16-0346 (2nd Cir. June 1, 2017))

The court did however leave open the possibility for such recording bans to be enforced provided they are more narrowly tailored and otherwise stating that such policy was not intended to chill employees’ section 7 rights. For example, a policy that is designed to protect an employer’s confidential and trade secret information would likely be upheld.

What should your business do?

For employers, this decision reinforces the need for to take stock of their policies concerning electronic devices and make sure they are current from both a legal and technological standpoint. Further, as it pertains specifically to recording, employers also must be aware of the laws in the states where they operate, as different states do have different positions on the legality of recording conversations without the consent of one or both parties. 

Best practice for policies regarding electronic devices

Take the time to have your policies regarding electronic devices reviewed by counsel to ensure they are current. A little preventative time spent now could go a long way in avoiding a more costly result later.
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