Employer’s Ban on Recording Conversations – Lawful or Not?

NLRB Administrative Law Judge Says Ban Is Lawful

An Administrative Law Judge (“ALJ”) has put at least a temporary stop to what many have seen as a trend to expand employee rights under the National Labor Relations Act. The NLRB General Counsel’s complaint filed against an employer, who maintained a policy prohibiting the recording of conversations on company premises during work time, has been dismissed. In other words, this decision says that it is lawful for an employer to ban the recording of conversations in the workplace. While this is not the final word from the NLRB—the ALJ’s decision still must be approved—this decision helps define the scope of employee and employer rights when it comes to recording work-time conversations.

This Is Our Policy and Why We Have It

The employer in this case was Whole Foods Market. It published a company-wide policy regulating the recording of conversations while at work that explained why the policy was important. Here is what the policy said:

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.

Team Member Recordings

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 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.

Violation of this policy will result in corrective action up to and including discharge.

This policy had been in effect since at least 2001 but was recently challenged by the union.

NLRB Issues a Complaint Alleging that the Policy Inhibited Employee Rights to Organize

The policy was challenged by the United Food and Commercial Workers Union in July 2013. After a quick investigation, the NLRB General Counsel filed a complaint. The case then went to trial before an ALJ who then issued his decision and recommendation on October 30, 2013, dismissing the General Counsel’s complaint.

In so ruling, the ALJ articulated the legal standards affecting company rules. In determining whether a challenged rule is unlawful, the NLRB must give the rule a reasonable reading, refrain from reading particular phrases in isolation and not presume improper interference with employee rights. If the challenged rule explicitly restricts activities protected by Section 7 of the NLRA, the rule will be found to be unlawful.

The ALJ goes on. If the rule does not explicitly restrict activity protected by Section 7—which in this case it did not—the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. The ALJ determined that none of these facts existed in this case.

The rule itself clearly explains its purpose—“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, and that recordation may inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.” That explanation is a clear, logical and legitimate description of the reason for the rule.

The ALJ concluded that making recordings in the workplace is not a protected right but is subject to an employer’s unquestioned right to make lawful rules regulating employee conduct in its workplace. There were no cases cited by the General Counsel to the contrary.

Lessons for Private Employers

Although this decision does not carry the force of law and is not an official decision of the NLRB, it is an encouraging sign for employers and is instructive on fashioning a policy that will likely withstand NLRB challenge. To that end, employers in drafting No-Recording Policies should consider making sure that: