Last year, the National Labor Relations Board (NLRB) surprised many employers when it declared illegal Whole Foods’ policy that prohibits employees from video or audio recording in the workplace. The Board concluded that the policy violates Section 7 of the NLRA, because it could be construed to interfere with employees’ rights to engage in concerted activity. On June 1, the Second Circuit Court of Appeals affirmed this administrative decision.

In Whole Foods Mkt. Grp., Inc. v. NLRB, the employer defended the policy on the basis that it promotes open employee communications in the workplace by removing suspicion that such conversations are being recorded. The Second Circuit agreed in a summary decision with the NLRB’s position that the policy is overbroad, and that it could reasonably be interpreted by employees to interfere with organizing activities, documenting unsafe work practices or publicizing discussions about terms and conditions of employment.

Where does this decision leave employers? The NLRB said that “no recording” policies can be lawfully applied in some circumstances. For example, employers can ban recording in areas that contain proprietary information. A medical practice could ban recordings that could reveal private patient information. In other words, the policy must be tailored to specific, legitimate business concerns. A general ban on workplace recording will be considered overbroad and subject to NLRB challenge.

Employers should review their current policies and make necessary changes to comply with the NLRB position. This case has no impact on state laws that prohibit recording of conversations in some jurisdictions where both parties are not aware of the recording.