Rule Prohibiting Recording in the Workplace Does Not Violate NLRA

Section 7 of the National Labor Relations Act (NLRA) grants to employees the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection … .” Over the last several years, the National Labor Relations Board (NLRB) has rejected numerous employer policies that it maintains impinge upon or impair these Section 7 rights in one way or another.

In Whole Foods Market, Inc. (NLRB 2013), however, an administrative law judge (ALJ) held that the company’s rule prohibiting employees from recording conversations with tape recorders and other devices, such as cell phones, did not chill employees’ exercise of Section 7 rights. The rule only applies during working time—not when employees are on breaks. Thus, it was not at odds with Section 7, the purpose of which is to “eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

The ALJ rejected the NLRB General Counsel’s argument that the rule would unlawfully prohibit employees from recording conversations related to protected activities. The ALJ agreed that such a rule would prohibit such conduct, but disagreed that such a prohibition would be unlawful. Although the rule prohibits employees from recording conversations, the ALJ held that this prohibition would not lead employees to conclude or fear that they would suffer recriminations for engaging in protected activity.

Although this case may be appealed to the full NLRB, for the time being it serves as a useful reminder that well-crafted work rules, which protect both an employer’s legitimate business concerns and employees’ rights, are lawful under the NLRA.