A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently found that a policy of Whole Foods Markets, Inc., prohibiting employees from recording conversations in the workplace did not violate the National Labor Relations Act (the Act). Because cell phones, tablets, and other devices with recording capabilities are now ubiquitous, even in the workplace, employers should take note of this decision as they draft and apply their own anti-recording rules.

In Whole Foods Market, Inc., the ALJ found that, because the text of the employer’s rule explained its purpose, and because that purpose was “clear, logical, and legitimate,” no employee could reasonably construe the rule as a prohibition on rights protected by the Act.

According to the Whole Foods policy, employees could not “record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from [their] store or facility leadership.” It further stated: “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.”

Analyzing the Whole Foods recording ban under the test articulated by the NLRB in its 2004 Lutheran Heritage Village-Livonia decision, the ALJ determined that the rule did not explicitly restrict any activities protected by the Act because making recordings in the workplace is not a protected right. Further, the rule did not prohibit employees from engaging in any other protected, concerted activities, or speaking about them. Indeed, “[t]he only activity the rule forbids is recording conversations or activities with a recording device. Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations.”

The ALJ also found no evidence to suggest that Whole Foods established the policy in response to union activity or that it had applied the rule to restrict the exercise of rights protected by the Act. The ALJ likewise concluded that employees would not reasonably construe the policy as prohibiting activities protected by the Act.

The NLRB General Counsel argued that the rule precluded collection of recorded evidence that could be presented in administrative and judicial forums. The ALJ noted, however, that an employee could present a contemporaneous written record of the conversation, as well as his or her own testimony.

Employers should review any existing policies prohibiting the use of recording devices to ensure that the stated reasons for their policies are clear. Employers should also review other policies that limit the use of technology in the workplace to ensure that they too meet the NLRB’s evolving standards.

Employers should take note, however, that the ALJ’s decision is subject to review by the NLRB, if either party files exceptions to the decision. As it did in recent decisions involving the use of social media, it is likely that the NLRB would scrutinize the impact of any no-recording rule on employees’ rights. We will continue to monitor and report on these developments.

If you have questions about the ALJ’s ruling or its implications, please contact William K. Kennedy II at 215.864.8243 or kennedyw@ballardspahr.com, Christopher T. Cognato at 215.864.8612 or cognatoc@ballardspahr.com, or the member of the Labor and Employment Group with whom you work. 


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