The brief answer to that question is “It depends.” The legality of no-recording policies is relatively a hot-button issue that has been addressed by the National Labor Relations Board (NLRB) and the U.S. 2nd and 5th Circuit Courts of Appeal.The leading case is Whole Foods Mkt. Grp., Inc. v. NLRB, in which the 2nd Circuit affirmed the NLRB’s finding that Whole Foods violated Sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining overbroad no-recording policies. The 5th Circuit struck down a similarly overbroad no-recording policy in T-Mobile USA Inc. v. NLRB. These cases provide guidelines that Idaho employers should take into account when crafting a policy that prohibits employees from recording conversations at work.
Sections 7 and 8 of the NLRA
Many of you will recall that Section 7 of the NLRA gives employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the NLRA makes it an unfair labor practice “for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7.
That essentially means employees have the right to take certain actions that are intended to help improve or protect the terms and conditions of their employment. An employer that restrains or interferes with that right may be found to have committed an unfair labor practice.
In determining whether an employer’s policy violates Section 8(a)(1), the NLRB and the courts will look at whether the rule would tend to chill (dissuade) employees’ exercise of their Section 7 rights. A policy that explicitly restricts protected Section 7 activities is unlawful. Moreover, a policy that doesn’t explicitly restrict Section 7 activities is still unlawful if:
- Employees would reasonably construe it to prohibit them from exercising Section 7 rights;
- It was promulgated in response to union activity; or
- It has been applied to restrict employees’ exercise of their Section 7 rights.
2nd Circuit Affirms NLRB’s Decision in Whole Foods
The issue before the NLRB and the 2nd Circuit—which covers Connecticut, New York, and Vermont—in Whole Foods was whether employees would “reasonably construe the [no-recording policies at issue] to prohibit” them from engaging in Section 7 rights and activities. The specific policies Whole Foods enforced provided:
1. In order to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust, Whole Foods Market has adopted the following policy concerning the audio and/or video recording of company meetings:
It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.
Please note that while many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.
2. It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue[,] especially when sensitive or confidential matters are being discussed.
Whole Foods argued its policies were lawful because they were limited to recording that took place during working time and didn’t apply when employees weren’t at work or during nonworking time (e.g., breaks).
The NLRB rejected that argument because the policies didn’t differentiate between recordings made during working time and those made during nonworking time. That finding appears to indicate that an employer’s no-recording policy should identify when recording is not permitted.
Whole Foods also contended that its policies were lawful and furthered an overriding employer interest (i.e., it had a business justification for the policies) because:
- They were in place to “preserve privacy interests, including personal and medical information about team members, comments about their performance, details about their discipline, criticism of store leadership, and confidential business strategy and trade secrets.”
- They contained “an embedded rationale—the encouragement of open communication—that would lead a reasonable employee to understand their lawful purpose.”
The NLRB rejected those arguments, reasoning that while Whole Foods’ “business justification is not without merit, . . . [it] is not nearly as pervasive or compelling as the patient privacy interest” found in Flagstaff Medical Center, 357 NLRB No. 65 (2011).
In Flagstaff, the Board found that a hospital’s no-recording policy didn’t violate the NLRA because of the “weighty. . . patient privacy interest and the employer’s well-understood . . . obligation [under the Health Insurance Portability and Accountability Act] to prevent the wrongful disclosure of individually identifiable health information, [and] employees would reasonably interpret the rule as a legitimate means of protecting those interests, not as a prohibition of protected activity.”
That finding appears to indicate that a broad no-recording policy must be supported by an employer’s interest or business justification that is identifiable and as strong as a medical provider’s interest in protecting patients’ health information. If you have a legal obligation to protect the information you’re seeking to protect through a no-recording policy, the strength of your business justification is likely increased.
Ultimately, the NLRB held that Whole Foods’ prohibition on “the recording of conversations, phone calls, images or company meetings with a camera or recording device without prior approval by management” would reasonably be construed by employees to prohibit them from engaging in Section 7 activities (i.e., acting in concert for their mutual aid and protection), and there was no overriding employer interest present.
The Board cited specific examples of protected Section 7 activities in which photography or recordings were used, often covertly, to vindicate Section 7 rights, including “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and 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 forms in employment[-]related actions.”
The NLRB further reasoned that Whole Foods’ policies were overbroad because they (1) unqualifiedly prohibited all workplace recording regardless of the activity an employee was engaged in, whether it was protected concerted activity or not, (2) didn’t differentiate between recordings protected by Section 7 and those that were unprotected, and (3) required employees to obtain the employer’s permission before engaging in recording on nonworking time. Any policy or rule that requires employees to get their employer’s consent as a precondition to engaging in protected concerted activity on their free time and in nonworking areas is unlawful.
The 2nd Circuit summarily affirmed the NLRB’s decision. However, the court recognized that its decision wasn’t meant to convey “that every no-recording policy will infringe on employees’ Section 7 rights. It should be possible to craft a policy that places some limits on recording audio and video in the [workplace] that does not violate the [NLRA]. Whole Foods’ interests in maintaining such policies can be accommodated simply by . . . narrowing the policies’ scope.”
5th Circuit Affirms NLRB’s Decision in T-Mobile
The 5th Circuit—which covers Louisiana, Mississippi, and Texas—recently came to the same conclusion as the 2nd Circuit regarding a similarly broad no-recording policy implemented by T-Mobile. T-Mobile’s policy provided:
To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information[,] employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [T-Mobile] activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture [of], audiotape, or videotape others in the workplace without the prior notification of all participants.
The NLRB determined that the policy violated Section 8(a)(1) of the NLRA and would discourage workers from engaging in protected activity because it:
- Banned all recordings,
- Banned recordings made during nonworking time and in nonworking areas;
- Didn’t differentiate between recordings that were protected by Section 7 and those that were not; and
- Unlawfully required employees to obtain permission from management before they engaged in any recording activity during nonworking time.
The NLRB rejected T-Mobile’s argument that it had a legitimate interest in maintaining employee privacy, protecting confidential information, and promoting open communication, finding those weren’t overriding interests that would permit a broad ban on recording. Further, the Board found that T-Mobile hadn’t narrowly tailored the policy to protect any demonstrated legitimate interest or to reasonably exclude Section 7 activity from its broad reach.
In affirming the NLRB’s decision, the 5th Circuit noted that it was concerned about the broad reach of the recording policy, which “encompass[ed] any and all photography or recording on corporate premises at any time without permission from a supervisor.”
Moreover, the court concluded that because of its broad terms, a “reasonable employee, generally aware of employee rights, would interpret it to discourage protected concerted activity, [including] even an off-duty employee photographing a wage schedule posted on a corporate bulletin board.” Finally, said the court, T-Mobile’s asserted justifications in the policy “[do] not alter the fact that the operative language of the [policy] on its face prohibits protected Section 7 activity, including Section 7 activity wholly unrelated to those stated interests.”
Considerations for Drafting Workplace Recording Policies
While there are no clear-cut rules or guidelines for drafting a no-recording policy that would withstand scrutiny from the NLRB or courts, you should take certain considerations into account:
- A policy that prohibits all employee recording will likely violate Section 7. (Recall that the recording of activities that are concerted and involve terms and conditions of employment are likely protected by Section 7.)
- The policy shouldn’t prohibit all workplace recording outright unless you have an overriding legitimate interest that is as strong as a hospital’s interest in protecting patients’ health information.
- The policy should identify and be related to your overriding legitimate interest. Having a legal obligation to protect certain information likely increases the strength of your interest. Note that protecting confidential information concerning your customers, vendors, suppliers, or trade secrets likely wouldn’t justify a broad no-recording policy.
- The policy shouldn’t prohibit recording activities that are protected by Section 7—even during working time.
- The policy shouldn’t require an employee to obtain your consent prior to making a recording.
- The policy should clearly convey to employees that it isn’t intended to interfere with, infringe on, or restrain employee rights protected by Section 7.
- The policy should define the time, area, and/or activities that your overriding legitimate interest prohibits employees from recording. For example, you might limit the policy to prohibiting employees from engaging in recording during working time, while they’re in work areas, or while they’re conducting employer business. Although defining such limitations may assist you in defending your narrowly tailored no-recording policy, the NLRB or a court may still find that your policy violates Section 7 since photography and recordings, often covert and made during working time and in work areas, have been used to vindicate Section 7 rights.
- Idaho is a one-party consent state, which means a person may record a conversation without telling the other participants as long as she is one of the parties to the conversation. Likewise, federal law permits a person to record a communication when she is a participant or when one of the parties to the communication has given prior consent. A no-recording policy likely wouldn’t benefit, in terms of enforceability, from reference to those laws. However, if you operate in a state that prohibits nonconsensual recordings or in a two-party/all-party consent state, you should identify the relevant state law in your policy. (Generally speaking, in two-party/all-party consent states, the person recording the conversation must notify all other parties, and they must consent to the recording.)
Because litigating a no-recording policy before the NLRB or a court can be an expensive and time-consuming process, we recommend that you get in front of the issues raised by such policies at the earliest possible opportunity. In other words, it will likely save you time and money in the long run to get the advice and assistance of counsel in drafting a narrow no-recording policy that will withstand legal scrutiny.