06-13-2017
The Second Circuit Court of Appeals has upheld an National Labor Relations Board ruling against Whole Foods’ “no recording” policy. Whole Food’s policy prohibited all recordings without management approval. This prohibition included conversations, phone calls and meetings. The company claimed that the policy was intended to “promote employee communication in the workplace” because employees could speak without worrying about being recorded.
Section 7 of the National Labor Relations Act (NLRA) guarantees employees their right to “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers that interfere with that right have committed an unfair labor practice. Both parties in this suit agreed that the “no recording” policy was not intended to restrict Section 7 rights or created in response to union activity.
However, in reviewing the policy and its potential implications, the Second Circuit agreed with the NLRB that the policy was overbroad and could potentially limit employee rights under Section 7. “Employees would reasonable construe the language to prohibit recording protected by the [NLRA]” It was noted by the circuit court that a policy could be crafted that places some limits on audio recording in the workplace but does not violate the NLRA.