Michigan Labor & Employment Law Blog

According to Whole Foods, those policies were intended to encourage open communications, as the possibility of secret recordings could inhibit spontaneous dialogue, especially when sensitive or confidential matters were being discussed. The National Labor Relations Board ("NLRB") saw it much differently. According to the NLRB, Section 7 of the National Labor Relations Act (the "Act") protects photography and audio or video recording if employees are acting in concern for their mutual aid and protection and no overriding employer interest exists. For example, employees may record images of protected picketing, document unsafe workplace equipment or hazardous working conditions, document and publicize discussions about terms and conditions of employment, document inconsistent application of employer rules, or record evidence to preserve it for later use in administrative or judicial forums in employment-related litigation.

On June 1, 2017, the Second Circuit Court of Appeals issued a summary order, enforcing the NLRB's finding that Whole Foods no-recording policies were unlawful. The court rejected Whole Foods' contention that the policies promoted employee communication in the workplace, finding instead that the policies would have a chilling effect on an employees' exercise of rights under the Act.

Employers must be aware that now, with court approval:

• The NLRB generally will reject a total ban on workplace recordings and unauthorized recordings;
• If employers chose to implement no-recording policies, they must be narrowly drafted and include an explanation of the business justification on any restrictions on recordings;
• The policy should be limited to recordings during work time or in work areas, although doing so may not necessary avoid a challenge by the NLRB.

Employers should consult with counsel before implementing no-recording policies or disciplining employees for recording workplace conversations or activities.