NLRB Upholds Whole Foods' Ban on Recording in the Workplace

Can employers ban employees from recording the conversations of other employees in the workplace?

One administrative law judge with the National Labor Relations Board says yes, they can.

In Whole Foods Market, Inc v. United Food and Commercial Workers, the issue presented to administrative law judge Steven Davis, was whether Whole Foods' rule banning employees from recording conversations with other employees violated the National Labor Relations Act (NLRA).

The rule, contained in Whole Foods' General Information Guide (GIG), states:

(i) Team Member Recordings
It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed. Violation of this policy will result in corrective action up to and including discharge.

The rule, which has been in effect since 2001, applies only when an employee is on work time, testified a vice-president from Whole Foods. It applies to all areas of the store including the parking lot and the area in front of the store.

The vice-president also testified that an essential part of Whole Foods "core values" and "culture" is that employees have a voice and are free to "speak up and speak out" on many issues, work related or not. An example he provided was at annual town hall meetings which are held without store management being present. At these meetings, employees have an open forum to discuss any work issues, and the recording of such a meeting would "absolutely chill the dynamic of the meeting."

ALJ Davis found this testimony convincing and concluded that the recording rule did not violate the National Labor Relations Act, and dismissed the complaint.

He specifically rejected arguments made by the General Counsel for the NLRB that the rule was overbroad, and prevents an employee from recording conversations related to protected activities including allegedly unlawful statements made by a supervisor, which could be used in an action for employment related matters.

No cases had been cited, nor found, in which the Board has found that making recordings of conversations in the workplace is a protected right, wrote Davis. "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 in its workplace."

Additionally, he noted that the rule is only limited to making electronic recordings of conversations. An employee "may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters."

The rule was not contradicted by the presence of surveillance cameras which served the legitimate business purposes of protecting customers and employees, and preventing theft.

Because the rule addressed legitimate business concerns, as stated clearly in the rule, there was no basis for a finding that a reasonable employee would interpret the rule as prohibiting protected activity under the NLRA.

A Sixth Circuit Court of Appeals case, Jones. v. St. Jude's Hospital, held in 2012 that a recording of another employee was not a protected activity under Title VII of the Civil Rights Act. Although that case was in the context of plaintiff's discrimination claim, the Court there found no reason to find the company's ban on recording to be illegitimate. Like the Whole Foods case, the Court took issue with the plaintiff's failure to show that she needed to violate the company's recording policy, when she could have simply taken notes of conversations, obtained information through legal discovery, or simply asked for permission to record.

At Odds with a Prior Advice Memo?

In contrast, the Office of the General Counsel of the NLRB recently released an Advice Response Memo in 2013 (although written in March 2012), that concluded that, among other violations, the portion of Giant Food, LLC's social media policy prohibiting employees from taking pictures or recording the employer's premises was unlawful. The opinion determined that the rule "would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities."

While the memo focuses on videos of the workplace and the Whole Foods opinion focuses on employee conversations, presumably videos of the workplace could include employee conversations, and thus the two appear to be at odds.

The ALJ in the Whole Foods case clearly rejected the opinion of the General Counsel. It remains to be seen whether other judges or the Board will follow suit.