While employees making audio or video recordings of others in the workplace have long concerned employers, companies usually refrain from banning employee recording, uneasy about potentially infringing on employees’ rights to engage in protected concerted activity.  A recent case illustrates the analysis the National Labor Relations Board uses to scrutinize a workplace policy that restricts employee recording workplace conversations.

In Whole Foods Market, Inc., Case No. 1-CA-96965 (10/30/13), Administrative Law Judge Steven Davis found that the company’s nationwide policy banning employee recording of workplace “conversations” was lawful.  The policy’s stated purpose was “to eliminate a chilling effect… when one person is concerned that his or her conversation with another is being secretly recorded.”  The prohibition otherwise complements the company’s well-established and pro-active open-door policy.  The ALJ found the company has a legitimate business interest in promoting a culture encouraging employees to “speak up and speak out.”

The NLRB’s General Counsel argued the policy was unlawful because employees would reasonably believe it prohibited them from engaging in protected concerted activities – including recording arguably unlawful statements by supervisors.  However, this   argument was rejected based on the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). A policy is unlawful if it explicitly restricts activities protected by the NLRA, or, if (1) employees would “reasonably construe” it to prohibit protected activity; (2) it was promulgated in response to union activity; or (3)  it has been applied to restrict Section 7 rights.

Judge Davis made the refreshingly plain observation that “making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regulating employee conduct.”  Further, he found the no-recording rule did not expressly restrict protected activity, was not a response to organizing, was not used to inhibit protected conduct, and that the plain wording of the rule (promoting the employer’s established policies promoting open communications) would not be reasonably construed to ban protected activity.

In so finding, Judge Davis was informed by the Board’s holding in Flagstaff Medical Center, 357 NLRB No. 65 (2011). The employer’s rule banning the recording of images of hospital patients and facilities was upheld because the employer’s interest in maintaining patient privacy was unquestionable, and thus, hospital employees would reasonably interpret the rule as addressing legitimate privacy concerns, not a restriction on Section 7 activity.

Whole Foods (which could be reviewed and reversed by the Board) is consistent with Flagstaff Medical Center.  However, employers should note that these workplace restrictions were upheld solely because the employers had unequivocally established legitimate business interests, and the employee restrictions were tailored to advance those specific interests.  Employers are urged to consult with counsel before developing anti-recording policies.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Photo of Thomas V. Walsh Thomas V. Walsh

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments…

Tom Walsh is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He received a B.A., summa cum laude, from Long Island University and his Juris Doctor from St. John’s University. He is the author of “Recent Developments in the Weingarten Doctrine, The Board Shifts to the Right,” for the St. John’s University Journal of Legal Commentary. He is also co-author of the Atlantic Legal Foundation’s series “Leveling the Playing Field – What Charter School Leaders Need to Know About Union Organizing.” Mr. Walsh is a member of the New York State Bar Association and of the American Bar Association, and participates in the labor and employment law sections of both organizations.