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No-Recording Policies May Violate the National Labor Relations Act

Published by and on August 22, 2017

The Second Circuit Upholds the National Labor Relations Board’s decision that an overbroad no-recording policy violates the National Labor Relations Act (NLRA).

The Second Circuit Upholds the National Labor Relations Board’s decision that an overbroad no-recording policy violates the National Labor Relations Act (NLRA).

In a Summary Order issued on June 1, 2017, the Second Circuit affirmed the decision and order of the National Labor Relations Board (NLRB) finding that Whole Foods violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining overbroad no-recording policies. Section 8(a)(1) prohibits employers from interfering with, restraining, or coercing employees in the exercise of their right to self-organization, join a labor organization, bargain collectively, and engage in other concerted activities.

The NLRB has previously held that a rule can violate this section even if it does not explicitly restrict protected activity. Thus, a rule can violate the NLRA if employees could reasonably construe the rule to prohibit the protected activity, the rule was implemented in response to union activity, or the rule has been applied to restrict the employees’ rights under the NLRA.

Whole Food’s rules at issue restricted employees from recording conversations, phone calls, images, or company meetings with any recording devices without prior approval. Whole Foods provided testimony that these rules applied regardless of whether the employee was engaged in protected activity. Whole Foods stated that these rules were implemented to promote an open-door culture where employees are encouraged to speak out.

The NLRB, however, held that these rules could reasonably be construed to prohibit Section 7 activity as recordings and posting of photos are protected by Section 7 if they show employees acted in protected activity. For example, the recordings may document protected picketing, unsafe working conditions, or discussions of terms and conditions of employment. The NLRB ordered Whole Foods to cease and desist from enforcing these rules.

The Second Circuit found this decision to be reasonable and agreed that Whole Food’s no-recording policies were overbroad as they also applied to protected activity. The court therefore affirmed the NLRB’s decision and order against Whole Foods.

Welter Insight

With the prevalence of devices in the workplace that have the capability to record images and conversations (such as cell phones and computers), many employers are wary of the types of information that could be recorded, and in response, have enacted policies that in some way prohibit recording. Yet, employers should stay away from blanket no-recording policies and carefully craft any restrictions on recording to avoid running afoul of the NLRA.

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