NLRB Panel Rules Policies Barring Workplace Recordings Unlawful

By Steven M. Berlin, Esq. and Karen Hart, Esq.

It was not until the start of the New Year, when employers began to learn about an unprecedented Christmas Eve gift-to workers-from the National Labor Relations Board. Building upon its activity in recent years of striking down employer's handbook policies, the NLRB found certain policies that prohibited recording in the workplace without prior management approval to be unlawful.

The employer, Whole Foods Market, Inc., prohibited the recording of company meetings as well as other workplace conversations without approval regardless of whether the employee was engaged in protected concerted activity. The Board stated that the right of workers to engage in photography and recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 of the National Labor Relations Act if the employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.

Accordingly, the Board ruled that the board and unqualified language of the Whole Foods' no recording policies would reasonably be understood by employees as prohibiting Section 7 activities. Thus, the Board held that the policies would therefore have a chilling effect on employees' exercise of their protected Section 7 rights in violation of the NLRA. Moreover, the Board ordered Whole Foods to rescind the unlawful policies. See Whole Foods Market, Inc. v. United Food and Commercial Workers, 363 N.L.R.B. 87 (2015).

The start of a new year is a good time to review employment handbooks to ensure that policies are up to date and compliant with state and federal laws. Abrams, Gorelick, Friedman & Jacobson, LLP attorneys are available to answer questions and assist your organization in complying with these laws, including the NLRA's guidance as to workplace policies.