Whole Foods Loses the Fight to Stop Employee’s NLRA Right to Record

As an employee, protecting your rights is incredibly important. However, even with full knowledge of the rights you possess it can be tricky to identify situations where rights are violated and gather the evidence to prove your case when you look to enforce those rights. Communicating with others and recording situations where your rights may have been violated can be critical in making a case or even just determining whether your rights have been violated in the first place. Thankfully, your right to record in the workplace was just given a major boost in a recent ruling against Whole Foods by the National Labor Relations Board (NLRB).

The NLRB is the federal agency in charge of enforcing labor laws related to unions, collective bargaining, and unfair labor practices-primarily as set forth in the National Labor Relations Act (NLRA). Just a few weeks ago, the Second Circuit upheld a decision of the NLRB deciding that Whole Foods had violated the NLRA through a policy barring recording conversations, phone calls or meetings in the workplace without manager approval.

With this case upheld on appeal, let’s take a look at the rights the NLRA grants you, the case itself, and what the case means for you as an employee or an employer.

Your NLRA Rights

The NLRA itself provides you a fairly broad suite of rights related to your ability to organize and bargain collectively. Under the act you have the right to (or not to) self-organize, form, join, or assist labor organizations, bargain collectively through representatives of your own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This basically means you have the right to choose whether or not to join with other employees in bargaining for employment terms. You also have the right to take the steps necessary to coordinate that group bargaining.

In order to protect these rights, the NLRA also makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of any of the rights discussed above.

The Case Against Whole Foods

Whole Foods had two policies on the books that got them into the legal trouble which led to this case. First, a policy forbidding any audio or visual recording of company meetings-with any recording device-without prior approval of a manager. The second policy applied a similar recording ban on any conversation held during business hours. These policies applied to any topic of conversation and all areas of every Whole Foods store.

The stated goal behind these policies was to encourage “open communication” and “spontaneous and honest dialogue.”  Whole Foods argued that, regardless of the policy, they strove to foster a culture where employees were free to speak up though open door policies and “town hall meetings.” They argued that recording meetings would damage the anonymity behind complaints and weaken employee rights.

However, the NLRB and the Second Circuit weren’t buying it. The test to see if rights have been violated isn’t whether an employer provides sufficient avenues for an employee to speak out, but rather whether the policy could inhibit an employee’s NLRA rights.

When Does a Policy Violate the NLRA?

A policy inhibits rights where it would “reasonably tend to chill employees in the exercise or their” NLRA rights. This means that policies which tend to make it harder to exercise your rights are not ok. This can happen where a policy explicitly restricts you from doing something the NLRA guarantees. However, a policy also violates the NLRA when: 1) an employee would reasonably consider in to prohibit them from asserting NLRA rights; 2) the rule was made in response to union activity, or 3) the rule, despite how it is written, has been used to restrict employees’ NLRA rights. Where a rule is ambiguous, but could be interpreted to violate NLRA rights, it still violates the NLRA. This unacceptable overbreadth exists when an employee would reasonably interpret the policy to prevent exercise of NLRA rights. It is this rule against overbroad policies that worked against Whole Foods.

Ruling Against Whole Foods

The policies are a blanket ban on all recording. However, photography and video recording in the workplace have historically been guaranteed when it is done to document a potential violation of rights under the NLRA unless there is a particularly compelling reason for the employer to ban them such as the heightened privacy interests of patients within a hospital. The NLRA has even been interpreted to guarantee an employee’s ability to post these photographs and recordings on social media.

Despite Whole Foods stated purpose of maintaining open communication, the policies as written prevented employees from exercising these rights. Thus, the policies violated the NLRA by inappropriately curtailing protected employee actions.

However, the ruling didn’t hold Whole Foods’ feet to the fire too much. It only really required them to retract the policies, or at least reword them to provide exceptions for NLRA protected recording.

What Does This Mean For Employers and Employees?

One thing to keep in mind is that this is not the only time in recent memory that the Second Circuit has backed the NLRB in expanding the definitions of employee rights under the NLRA. It was just May of this year that they ruled that an employee had the right under the NLRA to post quite unflattering things about his manager in a social media post because the post also discussed an ongoing union election. This could be seen as a trend towards expanding the spheres in which an employee enjoys NLRA protection.

For employees, this ruling means that you enjoy greater NLRA protections on your right to organize and record the behavior of your employer. This is incredibly important because proving a violation of your NLRA rights will often require this sort of recorded evidence.

As an employer, this ruling can act as guidance for crafting policies on recording that avoid the mistakes of Whole Foods. Recording restrictions haven’t been banned altogether, rather recording restrictions without clearly defined exemptions for NLRA rights have. The lesson here is to make sure that your policies include these exemptions in order to avoid trouble with the NLRB.

So is this the beginning of a trend where NLRA rights catch up with tech? It’s simply too early to say. However, the trend is encouraging. Recording devices are more broadly available than ever before. It’s a safe wager that a large portion of those reading have one in their pocket or purse as we speak. With recording rights protected, it’ll be easier than ever before to gather the evidence necessary to protect your rights-and that’s encouraging.