The answer, like many in HR, is it depends on the circumstances. If you ask the NLRB they will tell you “No” if it interferes with an employee’s rights under the National Labor Relations Act. In fact recording of any kind, photographic or voice, has to be allowed baring some valid legal or business justification. Having a policy in your employee handbook that prohibits employees recording company meetings or conversations with employees is in violation of the NLRA according to the decision of the NLRB in a case against Whole Foods.
The case against Whole Foods was based on a charge filed by United Food and Commercial Workers, Local 919 (UFCW), and based on charges and amended charges filed by the Workers Organizing Committee of Chicago (WOCC). A complaint was issued against Whole Foods Market, Inc. for two policies listed in their handbook called the General Information Guide. The first policy read:
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 action, 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.
The second policy read:
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.
To most readers these policies would be reasonable policies and indeed the Judge on the case thought they did not violate the NLRA. His decision read “that the no-recording rule did not explicitly restrict Section 7activity because it “does not prohibit employees from engaging in protected, concerted activities, or speaking about them,” and because “[m]aking recordings in the workplace is not a protected right.” The judge dismissed the complaint.
The General Counsel of the NLRB did not agree with the ALJ. He over-ruled the finding saying “…that recording conversations in the workplace is a protected right, and he points out that it is uncontested that the Respondent would apply and enforce the rules at issue in circumstances where employees are engaged in Section 7 activity. Accordingly, …, employees would reasonably interpret the rules to prohibit their use of cameras or recording devices in the workplace for employees’ mutual aid and protection, “such as photographing picketing, or recording evidence to be presented in administrative or judicial forums in employment related matters.”
According to Ogletree Deakins attorney John T. Merrell, the General Counsel said “photography and audio or video recording in the workplace, as well as the posting of photographs or recordings on social media, are protected by Section 7 of the National Labor Relations Act (NLRA), as long as “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.” He said the NLRB then gave five examples of protected activity that are covered by this ruling. These include:
- recording images of protected picketing;
- documenting unsafe workplace equipment or hazardous working conditions;
- documenting and publicizing discussions about terms and conditions of employment;
- documenting inconsistent application of employer rules; and
- recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.
There are however some exceptions. Whole Foods operates in some states where state law prohibits recording conversations without mutual consent. Merrell said that the NLRB acknowledged this and said the company should have noted in their policies the specific places where this exception existed.
Merrell also pointed out that Whole Foods, and other organizations, may have genuine business related reasons for banning recording, such as patient privacy or proprietary product information. I have one client who is very secretive about how their product is made and I watch the show “How It’s Made” and they often shut off the cameras to protect a proprietary process. However the NLRB said, according to Merrell, even though “Whole Foods Market’s business justifications for prohibiting recording in annual town hall meetings and termination-appeal peer panels were ‘not without merit,’ [the NLRB] found that these narrow circumstances could not justify a broad, unqualified restriction on recording.”
Merrell ends his analysis by offering some very sound advice to employers. He said “Employers should be surgical in tailoring their policies, spelling out the explicit business reasons why workplace recording by employees is prohibited.” You can still prohibit recordings but you must be very clear on the “what and why.” Additionally be very guarded when trying to discipline an employee. He says “…employers that wish to discipline an employee for taking photos or making recordings in the workplace must carefully evaluate whether the employee’s actions constitute Section 7 activity under the NLRA.” If in this reasoned evaluation the activity is not protected then discipline can proceed.