Video and Audio Recordings in the Workplace

Photographer: Patrick T. Fallon/Bloomberg via Getty Images

In Whole Foods Market, Inc. and United Food and Commercial Workers, 363 NLRB No. 8 (2015), the National Labor Relations Board (“NLRB”) ruled that employer policies that prohibit employees from recording, whether via video or audio, conversations, phone calls, images or meetings in the workplace violate the National Labor Relations Act (NLRA).

This is so even if the employer is not unionized.  This case is an example of a long line of cases where the NLRB has found that non-union employers’ policies and adverse actions towards employees violate the employees’ rights under the NLRA.

Whole Foods had two policies in its employee manual, one policy prohibited employees from recording conversations, phone calls, images or company meetings with any recording device without approval from management or without the consent of all parties to the conversation.  The second policy prohibited recording conversations with any recording device (cell phones, digital cameras, etc.) without prior approval from management.  Whole Foods stated that the purpose of the policies were so that employees could express their views freely without concern that their conversations were being secretly recorded.

Section 7 of the NLRA protects an employee’s right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.  It is a violation of the NLRA for employers to maintain work rules that reasonably tend to “chill” employees’ exercise of their Section 7 rights, whether or not they are unionized.  The NLRB held that the requirement to obtain management approval before recording violated the NLRA because employees could reasonably interpret the rule as prohibiting the recording of protected union activities.

If Whole Food’s policies had provided for an exception or proviso for recordings made to protect employees’ rights to engage in Section 7 activities then the results may have differed. Employers should review their employee manuals and policies to ensure that they are not in violation of the NLRA by failing to allow employees to take part in protected activities under the NLRA.

Specific policies to review include, but are not limited to, bans on recording, confidentiality/non-disclosure, solicitation/distribution, social media, email use, and dress code.  If you have any questions please feel free to contact Franklin, Gringer & Cohen, P.C.


“Video and Audio Recordings in the Workplace” was written by Jasmine Y. Patel