NLRB strikes down workplace rule banning employees from recording meetings

By Michael Carroll | Mar 21, 2016

Whole Foods' employee recording ban was overturned.  

PITTSBURGH - Employers can no longer enact broad policies that prohibit their employees’ use of cell phones and digital cameras to record conversations at company meetings, according to a recent National Labor Relations Board case.

Labor and employment attorney Robert McTiernan, who works for Tucker Arensberg in Pittsburgh, said the  case involved a challenge to a recording policy at Whole Foods by the United Food and Commercial Workers, Local 919.

The grocery company had announced that employees who record conversations, telephone calls or company meetings without approval from top managers could be subject to discipline or even dismissal.

McTiernan says ruling could be a boost for union organizers, who often try to document managers making extreme statements against union activities.

But even so, McTiernan told the Pennsylvania Record that employers need not engage in efforts to oppose the ruling.

“Employers should adapt to it, and reasonable rules can be made,” he said, adding that more specific policies can be drawn up to restrict employee recording activities under certain conditions.

For example, he cited how the NLRB supported a hospital’s rule that prohibited the use of cameras in certain areas in order to fulfill the hospital’s duty to secure the patients’ health data.

In addition, McTiernan also mentioned the possibility of restricting recordings at meetings at which trade secrets might be discussed. Other activities that might justify employee recordings, according to the NLRB decision, might be inconsistent application of employee rules and protected employee picketing.

When it initially enacted the policy, Whole Foods differentiated between the recording activities of employees and company locations where security cameras had been set up, saying that those cameras were permitted as a way to provide security for customers and workers and to prevent stealing or robberies.

“Whole Foods issued a broad rule because they didn’t want any meetings filmed or recorded,” McTiernan told the Record. “That’s an unfair practice.” Employees also have recording rights when trying to document safety violations or perhaps an instance of sexual harassment, he added.

Asked about how the NLRB’s ruling might affect states like Pennsylvania, which has criminal laws against surreptitious recordings, McTiernan said that the NRLB decision would not on its face overrule any state statutes.

He told the Record, “The rules are more strict in those states. That is a reminder to employees that things they think are protected might be a violation of state law, such as recording a telephone conversation.”

He also suggested to employers, “Be aware of the fact that the NLRB protects not just people forming a union but any concerted activity by employees.”

That might be something as simple as a few employees coming forward with issues about working conditions, and recording such meetings would be protected, McTiernan said.

“Draft (recording) rules that are sensible and not too broad,” he suggested to employers. “Employers should think about both their interests and that of the public.”

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