Here we go again! The National Labor Relations Board (NLRB) (the activist agency that declared many common employer policies meant to establish professionalism, workplace cooperation and congeniality to be unlawful) has done it again. In late December 2015, the NLRB ruled that Whole Foods Market policy prohibiting the recording of conversations in the workplace violated Section 8(a)(1) of the NLRA. The employee policies were part of general guidelines (from HR) that applied to all the employees and applied to any electronic device that may be used to record images or conversations. It covered all areas of the store, as well as the parking lot.
Two policies were found unlawful. The first policy prohibited the recording of company meetings without prior approval from the store management. The second policy prohibited all recording in the workplace without similar approval. The company’s stated purpose for the rules were to encourage open conversation, and to eliminate the chilling effect that happens when someone is concerned that conversations are being secretly recorded.
As in similar cases, the Board concluded that the rules would reasonably be interpreted by employees to prohibit them from engaging in Section 7 activity (such as recording picketing, documenting hazardous conditions, publicizing issues related to terms and conditions of employment). Net result – blanket no recording rules in an Employee Handbook will be likely be declared illegal, unless there is a better employer justification. Employers need to create narrowly crafted policies designed to protect valid business justifications (such as trade secrets, confidential info, HIPAA concerns, wiretapping protections).
In Florida, two party consent is needed for recording a conversation; however, in New York and other states, a person can record a conversation as long as the individual doing the recording is a party to the conversation. Whole Foods has appealed the decision, so stay tuned. Kathleen M. McKenna, from Proskauer Rose LLP is the attorney for Whole Foods.
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