NLRB Says Employers Can’t Make Employees Turn Off Their Smartphones

The NLRB recently struck down a Whole Foods workplace policy banning employees from recording conversations or taking photographs in the workplace without management approval. Despite Whole Foods’ plea that the policy was intended to encourage open and frank conversations and to eliminate a chilling effect on the expression of views that may exist when an employee is concerned that his or her conversation is being secretly recorded, a divided Board held the exact opposite – that the policy prohibited protected concerted activity in violation of Section 7 of the NLRA.

The Board’s opinion reasoned that workplace photography or recording, often covert, is essential in employees vindicating their underlying Section 7 right to engage in protected concerted activity. And because the policy didn’t differentiate between recordings protected by Section 7 and those that are unprotected, Whole Foods’ policy was overbroad.

Employers that maintain a similar policy as Whole Foods’ might want to hesitate before revising (or eliminating) their policy. While the NLRB’s ruling affects both union and non-union employers, its reasoning is highly fact-specific, ignores industry-specific concerns (such as HIPAA privacy issues in the healthcare field or FERPA privacy in the education field), and fails to address concerns about proprietary and trade secret information. Additionally, the opinion does not fully address whether state laws that ban nonconsensual recording would still be enforceable.

The NLRB’s new posture on workplace recording remains untested by any court, and the upcoming presidential election could completely change the dynamic of the Board, thus discounting many of the NLRB’s recent far-reaching opinions.

Many thanks to my employment law colleagues for their help on this post, including Lee GeigerBruce Petrie, Jr., and Nick Ziepfel. Happy New Year to them and all my readers!