Now that most, if not all, employees have smartphones with cameras in their pockets at all times, some employers have prohibited recording in the workplace. However, recent decisions by the National Labor Relations Board (“NLRB” or “the Board”) have found that “no recording” policies are illegal under the National Labor Relations Act (“the Act”). In fact, one case was upheld by a federal circuit court of appeals. Whole Foods Mkt. Grp. Inc. v. NLRB, Civ. 16-0002 (2nd Cir., June 1, 2017) (enforcing Whole Foods Mkt., 363 NLRB No. 87 (2015)). The NLRB essentially finds that these policies conflict with the rights of employees to record themselves engaging protected activities (strikes, protests, etc.) under the Act.

SupermarketIn Whole Foods, the unlawful policy at issue, in relevant part, stated: “in order to encourage open communications, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust …. It is a violation of [the Employer’s] policy to record conversations … or company meetings with any recording device … unless prior approval is received ….”

When evaluating employer rules, the NLRB looks to see “whether employees would reasonably construe the language [of the rule] to prohibit [protected] activity.” In undertaking this analysis, the NLRB uses an objective standard to measure how, in the Board’s view, a reasonable employee would read and understand the rule. As such, employer rules are illegal when they tend to chill employees in the exercise of their rights.

Notably, the NLRB has found in past case that employees are, under some circumstances, allowed to make audio/visual recordings of protected activities, which include picketing and documenting alleged unsafe work conditions. Thus, the Board found in Whole Foods that the rule prohibiting all recordings conflicted with this right.

Under the rule explained in Whole Foods, an employer cannot maintain a blanket policy prohibiting recordings in the workplace, unless there is some employer overriding interest. Regarding the interests necessary to override employees’ rights to record, the NLRB has rejected employers’ arguments regarding to free-exchange of ideas in the workplace and dialogue about business strategy. Significantly, an NLRB Administrative Law Judge has even found that recordings cannot be completely banned in a nuclear power plant. Entergy Nuclear Operations, Inc., 01-CA-153956 (May 12, 2017). In one case, however, the Board allowed a hospital to prohibit recordings due to patient privacy concerns. Flagstaff Med. Ctr., 357 NLRB No. 65 (2011).

Thus, unless the employer can prove to the NLRB that an overriding interest is present, employers will need to craft narrow policies that prohibit recordings without tending to “chill” the rights of employees. As it stands now, the Board has suggested that this mission is possible, but has not provided much guidance as to how to design such a narrow policy. At best, the Board might uphold a policy that expressly states employees are allowed to record protected activity or record during non-work time, but only time will tell. However, as the winds of political change blow over the NLRB, the current Board, with a majority of Republican-appointed members, may be more receptive to employer arguments regarding the lawfulness of “no recording” policies.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.