Recording devices OK at Whole Paycheck

Did you know that some people call Whole Foods "Whole Paycheck"? I'm just throwing that out there. Putting that aside, Whole Foods has failed in its efforts to prevent employees from using recording devices at work. The Court of Appeals finds that the National Labor Relations Board was correct in holding that the no-recording rule may chill union rights.

The case is Whole Foods Market Group v. NLRB, a summary order decided on June 1. The Second Circuit ruling is not clear on this, but Whole Foods apparently told its workers they cannot record anything at work. Under the National Labor Relations Act, it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of their rights under the Act. The ultimate question is whether the rules "would reasonably tend to chill employees in the exercise of" their rights. It is even illegal if employees would reasonably construe the employer's rule to prohibit protected activity.

The Court of Appeals (Hall, Chin and Hall [D.J.]) says the NLRB was right to find that, in some instances, recording may be protected union activity. The NLRB also reasonably found that, "because Whole Foods' no-recording policies prohibited all recording without management approval, 'employees would reasonably construe the language to prohibit' recording" under the Act. While Whole Foods argued that the rule was intended to promote employee communication in the workplace, "the Board reasonably concluded that the policies' overbroad language could 'chill' an employee's rights" under the Act "because the policies as written are not limited to controlling those activities in which employees are not acting in concert."

In a footnote, the Court of Appeals notes that some no-recording policies may be legal. The footnote reads in part:

It should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the Act. Whole Foods’ interests in maintaining such policies can be accommodated simply by their narrowing the policies’ scope. See Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 659–60, 683 (2011) (holding that no-photography policy was lawful where hospital demonstrated patient privacy interest); Target Corp., 359 N.L.R.B. No. 103, slip op. at 2–3 (Apr. 26, 2013) (holding that reporting policy of unknown visitors in parking lot was lawful where rule was an employee safety policy).