What Does the NLRB Decision in the Whole Foods Case Mean for Recording in the Workplace?

Whole Foods, a major grocery store chain, has a company-wide policy that prohibits its employees from making any recording—audio or video—and from taking any photographs in any area of a Whole Foods store. But a recent decision by the National Labor Relations Board (NLRB) might require Whole Foods to make serious changes to its policy, in order to make sure that it isn’t trampling on employee rights under the federal National Labor Relations Act (NLRA). We are discussing the impact of this decision in two posts. This post explains the NLRB’s decision and what it may mean for employees in states where no other law prohibits such recordings. For Part Two of this series, click here.

The NLRB is the body tasked with interpreting the NLRA. And it recently sided with the employees who challenged Whole Foods’ policy on recordings. It determined that the policy violated the Act because it interfered with employees’ rights under Section 7 of the Act, which grants employees the right to join together to advance their interests. The NLRB appeared to concede that the Whole Foods rule did not explicitly restrict activities protected by Section 7 of the NLRA, but held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling effect on employees’ exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overbroad recording policy.

However, the Board’s opinion makes clear that not all rules that restrict employees’ ability to record in the workplace are invalid, stating: “[W]e find only that recording may, under certain circumstances, constitute protected concerted activity under Sec. 7 and that rules that would reasonably be read by employees to prohibit protected concerted recording violate the Act.” So employers can restrict recordings, but they have to be careful about how they do it.

The decision, which came down during a time when Whole Foods employees are fighting for the right to unionize and had just experienced significant pay cuts, will have consequences for companies across the country who try to prohibit their employees from documenting what goes on in the workplace. But challenges still await employees who might want to record employers. First, Whole Foods  has said that it is considering whether to appeal the NLRB’s decision to a federal circuit court, in part because the decision from the NLRB was not unanimous—one member of the Board dissented, agreeing with the administrative law judge who heard the case before it went to the NLRB who found the rule did not impede on the employee’s rights under the NLRA.

Second, even if the NLRB’s decision stands, employers who wish to prohibit recording in the workplace may still be able to do so, but will now have to attempt to discern in what circumstances recordings are “protected concerted activity” under the Act, and draft narrow rules that allow for the types of recordings that would reasonably be understood to be protected by the law. Employees, in turn, will still have to challenge policies that they believe are unlawful. In its decision, the NLRB pointed to past cases where it had approved of employees’ acts of recording as part of their concerted activity under Section 7.  For example, the NLRB had approved of an employee taking photographs of another employee in connection with her efforts to induce action regarding the company’s dress code. The Board previously found a violation of the Act when an employer wouldn’t rehire an employee who had secretly recorded in the workplace as part of a Department of Labor investigation. Similarly, the Board had previously repeatedly admitted secret recordings into evidence where they showed employers making threats to employees or otherwise violating the Act. Employers hoping to restrict employees’ ability to record will have to look to the NLRB’s past decisions in an attempt to divine what activity they may and may not be able to permit.

Undoubtedly, this decision from the NLRB is only the first in what will soon be a number of cases attempting to clarify in what instances recording in the workplace is a right protected by federal law. Regardless of how the courts that will inevitably confront this question handle the specific questions about what constitutes recording in support of protected Section 7 rights, the NLRB’s decision will have a widespread impact on workers across the country.