Many employers prohibit employees from recording conversations during working time. Employers believe that such recording inhibits or intimidates employees and managers from having frank and open discussions relating to work. Last month, a federal administrative law judge rejected a union’s claim that such bans violate the National Labor Relations Act.
In Whole Foods Market, Inc., a union attempting to organize Whole Foods workers claimed that the store’s anti-recording policy violated employees’ right to engage in protected concerted activity under Section 7 of the NLRA. Whole Foods defended its policy by noting a clear corporate culture of open door communications and solicitation of employee input into management decisions. The employer stated that allowing recording of conversations would chill such open communications among employees out of fear that their comments would later be used against them.
The ALJ agreed, finding no Section 7 violation. The judge noted that the union never demonstrated that the policy was adopted in reaction to organizing activity, and that it could not explain how the policy would otherwise deter employees from engaging in concerted activity. Employees had multiple other ways to make concerns known to management other than through recorded conversations.
The NLRB’s legal counsel aggressively pushed to declare the ban on recording policy illegal. It is likely that the legal counsel’s office will appeal this decision to the full NLRB, and that employers have not seen the end of the government’s attempt to prohibit bans on recording of work conversations.