Can we prohibit employees from making audio recordings at work?  As advancements in technology continue to increase, and it becomes easier and easier for employees to surreptitiously record conversations, this inquiry is posed by many employers.  In fact, we discussed this very question back in 2013.  Unfortunately, the answer to this question is perhaps the most often used attorney response  – “Maybe.”  This is especially true given the recent decision from the National Labor Relation Board (NLRB) in Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago.  For employers, or those looking to prohibit the use of recording devices, the NLRB’s decision, issued on December 24, 2015, is more akin to coal than an early Christmas present. 

This matter was before the NLRB after the NLRB’s General Counsel filed exceptions to the decision of Administrative Law Judge Steven Davis.  That decision, issued on October 30, 2013, was previously discussed by our labor colleagues.  In his decision, ALJ Davis found that the company’s nationwide policy banning employee recording of workplace “conversations” was lawful.  The policy’s stated purpose was “to eliminate a chilling effect… when one person is concerned that his or her conversation with another is being secretly recorded.”  The prohibition otherwise complements the company’s well-established and pro-active open-door policy.  The ALJ found the company has a legitimate business interest in promoting a culture encouraging employees to “speak up and speak out.”

In his exceptions to the ALJ’s decision, the NLRB’s General Counsel asserted that recording conversations in the workplace is a protected right and that employees would reasonably interpret the rules to prohibit their use of cameras or recording devices in the workplace for employees’ mutual aid and protection.

The NLRB found, contrary to the ALJ, that the rules at issue would reasonably be construed by employees to prohibit Section 7 activity.  The NLRB went on to say that photography and audio or video recording in the workplace are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.  Specifically, the NLRB stated that such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting or publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.

Importantly, the decision does state that the NLRB is not making any findings as to whether particular recordings are concerted and is also not finding that recording necessarily constitutes concerted activity.  Similarly, the NLRB stated they are not holding that all rules regulating recording are invalid.  Rather, the NLRB clarified they only found that recording may, under certain circumstances, constitute protected concerted activity under Section 7 (the dreaded “Maybe”) and that the rules at issue in this matter would reasonably be read by employees to prohibit protected concerted recording violate the National Labor Relations Act.

While mentioned in a footnote to the decision, it is important to note that some states (generally in statutes addressing wiretapping) require all parties to a conversation to consent before that conversation may be recorded.  To overcome these statutory prohibitions on surreptitious recording, the NLRB focused on the broad application of these recording rules to all jurisdictions where the Respondent has locations.  It is unclear whether the NLRB’s decision would have been different if the rules were limited to those states where nonconsensual recording is unlawful.

This decision, along with others by the NLRB and state and federal courts, highlights the difficulties employers face when attempting to prohibit recording or the use of recording devices.  As such, employers interested in implementing workplace rules or policies regarding recording are urged to consider existing legal precedent on this issue, set forth specific legitimate business interests for the prohibition, and consult with counsel before development and implementation.