On Christmas Eve, the NLRB released its decision and order in Whole Foods Market, Inc, 363 NLRB 87. In a 2-1 decision overruling the Administrative Judge (the one who conducted a hearing and took witness testimony), the NLRB held that Whole Foods' policy prohibiting recording of conversations, phone calls, images or company meetings without prior approval from management or consent from all parties violated the NLRA because the rule "could reasonably be read by employees as a restriction on their Section 7 rights." Section 7 of the NLRA has been increasingly used by the NLRB to strike down handbook provisions of employers - whether or not they are unionized. Whole Foods did provide the reason for the prohibition in their policy - "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 NLRB did not address the issue of jurisdictions in which it is illegal to record a conversation without the consent of all parties - unlike Tennessee which requires the knowledge and consent of only one of the parties. Although the NLRB specifically noted that their ruling is not a blanket prohibition on regulating recording in the workplace - merely that "rules that would reasonably be read by employees to prohibit protected concerted activity...violate the Act," the decision does not hold much hope for employers who wish to regulate recordings by employees outside of the medical setting (as impacted by HIPAA privacy concerns; see, Flagstaff Medical Center, 357 NLRB No. 65 ).
Many employer handbooks include some type of restriction on recordings or photography in the workplace. With the NLRB continuing to expand their definition of what a reasonable employee would view as a restriction on their Section 7 rights, it is likely time for all employers take a look at their employee policies before the NLRB has a chance to do it for them.
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