Like many employers, Whole Foods adopted a policy prohibiting employees from conducting unauthorized recording of conversations, phone calls or meetings, regardless of the recording technology used.  Employers generally believe that such activities create an atmosphere of distrust in the workplace, and that recordings can be used by employees to intimidate or bully co-workers. The Whole Foods policy had been in place since 2001, and was not a source of controversy. However, in recent years, Whole Foods and a number of employers have faced unfair labor practice charges based on these no recording policies. Last month, the National Labor Relations Board concluded that the policy violates employees’ rights to engage in protected concerted activity.

The NLRB rejected Whole Foods’ argument that workplace recordings erode the company’s open-door policy and culture of trust and openness. Whole Foods stated that employees would be less inclined to participate in open forums and other idea generating sessions if they knew they were subject to secret recordings. The NLRB rejected this reasoning and the findings of the Administrative Law Judge, concluding that the policy could potentially chill concerted activity rights. The Board focused on the breadth of the policy, noting that it covers all workplace interactions, not just the examples provided by the employer. The NLRB concluded that Whole Foods did not demonstrate business reasons justifying the broader ban.

There is no guarantee that federal courts asked to review these decisions will agree with the NLRB’s reasoning. However, employers concerned over unfair labor practice charges may want to consider reviewing and limiting workplace recording policies. The policies should not impose a blanket ban on recording, but should articulate the business reasons why recording is prohibited at certain times in certain places (for example, possible disclosure of trade secrets or protection of patient privacy in hospitals). As reported in last week’s EmployNews, this decision appears to directly contradict the terms of North Carolina’s and other states’ “Ag-gag” laws that impose civil penalties for unauthorized workplace recordings. Employers most likely face years of litigation until these competing interests are fully adjudicated.