Skip to main content

NLRB: No Recording/Photography Policy at Whole Foods Violated the NLRA


On December 24, 2015, the National Labor Relations Board ("NLRB") issued a 2 - 1 ruling that held that a Whole Foods policy which prohibited recording conversations or taking photos at work violated the National Labor Relations Act ("NLRA").  At issue was a provision in Whole Foods' General Information Guide which prohibited workers from taking photos or recording conversations inside a store "unless prior approval [was] received" by a manager or executive or "unless all parties to the conversation gave their consent."  

Whole Foods had argued that this prohibition was not meant to intimidate employees or curb their rights, however, the NLRB disagreed with this reasoning.  The NLRB found that Whole Foods' prohibition reasonably tended to chill an employee's exercise of their Section 7 rights; a violation of the NLRA.  

In this case, the restriction on photography and recording of conversations in the workplace were found to amount to an explicit restriction of activities protected by Section 7.  The NLRB noted that Whole Foods' prohibition could prevent employees from taking pictures of unsafe working conditions or recording statements that would reveal discrimination in the workplace.  In addition, there was a wealth of precedent which the NLRB relied upon to establish that photography or recording (often covert), was an essential element in vindicating an employee's Section 7 right.  Consequently, the NLRB held that Whole Foods rescind the prohibition and republish its General Information Guide without the prohibition included.

Five, ten, or even fifteen years ago, this situation was less likely to occur.  However, given the age in which nearly everyone has a smart phone of some sort that can take pictures or record conversations with ease, many employees have the opportunity to do just that in the workplace.  Based upon this ruling from the NLRB, employers would be wise to look at whether they have similar prohibitions in their workplace.  Bear in mind, some states have laws that still require the consent of two parties in order for a conversation to be legally recorded.  However, this ruling from the NLRB is instructive as to how employers can expect the NLRB to deal with a similar issue going forward.


A copy of the NLRB's ruling can be found here:  apps.nlrb.gov/link/document.aspx/09031d4581f3e617

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

Happening Tomorrow: Connecticut’s Minimum Wage Increases

For those employers and employees alike in Connecticut, mark your calendars as tomorrow, the minimum wage rate increases in the state from $13/hour to $14/hour. This wage hike comes after Connecticut Governor Ned Lamont had signed Public Act 19-4 into law in 2019 which progressively raised the state’s hourly minimum wage rate every year for five years.  In fact, next year, the hourly wage rate will top out at $15/hour.  Beginning in January of 2024, the hourly wage rate will be indexed to the employment cost index. For additional information:   https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2022/06-2022/Governor-Lamont-Reminds-Residents-That-Minimum-Wage-Is-Scheduled-To-Increase-on-Friday
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more