Human Resources News & Insights

ALJ rejects NLRB’s stance against employer ban on recording in the workplace

Is a semblance of sanity returning to the National Labor Relations Board? An NLRB administrative law judge recently rejected an NLRB General Counsel’s ruling that employees had a legal right to record their co-workers and managers in the workplace.  

The case involved Whole Foods Markets, a national grocery chain. The company’s policy handbook contained a rule that read, in part:

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.

Whole Foods challenged the NLRB’s right-to-record rule. During the proceedings before ALJ Steven Davis, Whole Foods HR exec Mark Ehrstein emphasized that an essential part of the company’s “core values” and “culture” was that employees have a voice and are free to “speak up and speak out” on many issues, work-related or not.

The right-to-record rule, Ehrstein said, would “chill the dynamic” of the interchange of ideas among employees.

And the ALJ agreed, saying the no-recording policy didn’t interfere with employee rights under the National Labor Relations Act: “Making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regarding employee conduct in the workplace,” he added.

Currently, 13 states have laws prohibiting recording an individual without that individual’s consent.

What have we learned?

Philip Gordon, writing on Littler Mendelson’s Workplace Privacy Counsel blog, said there is a fairly strong likelihood that the decision will be appealed. But he offered these takeaways for employers who are concerned about recording in the workplace:

  • A legitimate ban on recording in the workplace without management approval is defensible under the NLRA
  • The employer should specify the legitimate business justification for the ban in its “no recording” policy
  • Preventing the “chilling effect” on internal company discussions can be a legitimate business justification for a “no recording” policy
  • An employer who does rely on the importance of frank workplace discussions to justify a “no recording” should be prepared to provide examples of specific situations where (a) recording in the workplace would inhibit frank discussions, and (b) that inhibition materially undermines the employer’s legitimate and important business objectives
  • Whatever the justification, apply the policy to all employees, not just to non-management employees
  • Avoid promulgating the policy in response to union activity, and
  • When applying the policy by disciplining an employee for recording communications without management approval, carefully analyze whether the recording itself could be considered an exercise of the employee’s protected rights under the NLRA.
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