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NLRB Restricts 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. But the National Labor Relations Board says no.

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 ("Guide"), 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."

Recording Rule Does Not Violate NLRA

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.

National Labor Review Board Reached Opposite Conclusion

In 2015, the NLRB reviewed administrative law judge, Steven Davis', decision and came to the opposite conclusion. The issue before the board was whether or not Whole Foods had violated Section 8(a)(1) of the NLRA by maintaining rules in its General Information Guide that prohibited recording in the workplace without prior management approval.

The Board found that the rules in Whole Food's Guide may be construed by employees as prohibiting protected activities. The Board found that there was no overriding employer interest in prohibiting all recordings. Further, the Board found that the NLRB cases contain many examples where photography or recording, often covert, were essential in protecting and vindicating employees in exercising Section 7 rights.

Second Circuit Upheld Review Board

In June of 2017, The U.S. District Court for the Second Circuit, case number 16-0002, issued a Summary Order in the matter of Whole Foods Mkt. Grp., Inc. v N.L.R.B., affirming the board's decision. The court stated that Section 7 of the NLRA guarantees employees protection to engage in activities for the purpose of collective bargaining. 29 U.S.C. §157 ("Section 7"). In addition, it is an unfair labor practice for an employer to interfere with that right. 29 U.S.C. § 158(a)(1) ("Section 8"). In determining whether there was a violation, the court asked if the prohibition had a tendency to "chill employees in the exercise of their Section 7 rights." Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998) enforced 203 F.3d 52 (D.C. Cir. 1999. Quoting from International Union the court stated:

“Even if a rule does not explicitly restrict protected activity, the Board has determined
that the rule will constitute a violation if: ‘(1) employees would reasonably construe the language to prohibit [protected] activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of [protected] rights.’” Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am., AFL-CIO v. N.L.R.B., 520 F.3d 192, 197 (2d Cir. 2008) (quoting Martin Luther Mem’l Home, Inc. dba Lutheran Heritage Vill.-Livonia , 343 N.L.R.B. 646, 647 (2004) (“Lutheran Heritage”)).

The court found that a prohibition on all recording in the Whole Food's Guide did have a "chilling" effect on the exercise of the employee's Section 7 rights. The court said the employer policy was overboard because it included recording of activities that were protected as well as activities that might not be. The ruling allowed for Whole Food's to amend their Guide to narrow the recording prohibition.

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