Is This Mic On?: NLRB Finds Whole Foods Policy Has Chilling Effect

Recently, the National Labor Relations Board reviewed upscale grocer Whole Foods’ policy within its General Information Guide (“GIG”) which banned employees’ from recording in the workplace without prior management approval. Specifically the policy provided:

In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings:

It is a violation of Whole Foods Market policy 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 from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective aciton, up to and including discharge.

Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.

(GIG, “Team Meetings”, at pg. 25.) The GIG further provided:

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 on 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.

(GIG, “Team Member Recordings”, at pg. 57.)

In a 2-1 ruling, the NLRB found that the policy violated the NLRA and had a chilling effect (used in a very different way than Whole Foods used the term) on employee’s Section 7 rights. Specifically, the NLRB found that both of these rules could “reasonably be construed by employees to prohibit Section 7 activity.” Specifically, the Board found: “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protections and no overriding employer interest is present.” The decision made no reference to state laws which would prohibit this type of conduct unless all parties are aware of the recording such as those state laws in: California, Delaware, Florida, Illinois, Maryland, Montana, New Hampshire, Pennsylvania, and Washington.

The decision noted that no “overriding employer interest” was present in this case, but it is unclear whether the same decision would have been reached in a health care industry or other environment which involved highly sensitive or confidential data. Whole Foods appealed the decision to the U.S. Court of Appeals for the Second Circuit on January 5, 2016. Verrill Dana’s Labor & Employment practice group will continue to keep readers posted as the law surrounding employee recordings continues to develop.