Labor & Employment Developments Blog

On December 24, 2015, the NLRB ruled that an employer’s policy prohibiting employees from recording images or verbal exchanges in the workplace was unlawful.  Whole Foods Market had two policies stating it was a violation “to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received …”  Notably, there was evidence that the purpose of the policies was to foster open and frank conversations without someone being concerned they were being secretly recorded.   One of the policies expressly stated this purpose.  Nevertheless, the NLRB ruled that the policies were unlawful because employees may perceive the policies as prohibiting activity protected by the National Labor Relations Act -- “[p]hotography and audio or video recording in the workplace, as well as the posting of photographs and recording on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” If you have a similar policy in your handbook, you may need to assess whether the policy needs to be revised.