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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

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