Whole Foods Loses Appeal on Recording Ban Policy

By Lawrence E. Dubé

Whole Foods Market Group Inc. lost its appeal of an NLRB ruling that the grocer illegally prohibited employees from electronically recording communications in the workplace ( Whole Foods Mkt. Grp., Inc. v. NLRB , 2017 BL 183726, 2d Cir., 16-0002-ag, unpublished 6/1/17 ).

The Whole Foods policy prohibited employees from “record[ing] 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 Second Circuit agreed with the board’s 2015 ruling that the policy was overbroad and that the recording ban would have to be rescinded or revised. But the appeals court effectively left an opening for employers to try to redraft such rules to accommodate the rights of employees.

The National Labor Relations Act doesn’t necessarily preclude all workplace recording rules, and “it should be possible” for Whole Foods to “craft a policy that places some limits on recording audio and video,” the U.S. Court of Appeals for the Second Circuit said.

Broad Recording Ban Not Justified

The board in 2015 said the Whole Foods policy could discourage employees from communicating about unions or engaging in concerted activities that are protected under the NLRA. The company’s stated interest in promoting “spontaneous and honest dialogue” didn’t justify a broad ban that could interfere with employee rights, the board said.

Whole Foods petitioned for review in the Second Circuit, but the court enforced the NLRB decision.

The court said the board relied on its 2004 holding in Lutheran Heritage Village-Livonia that an employment policy is unlawful if employees would reasonably understand it as prohibiting NLRA-protected activity.

Whole Foods didn’t challenge Lutheran Heritage before the NLRB, and the court declined to allow such a challenge in the Second Circuit.

Recording in the workplace can “in certain instances” be protected, but the broad policy adopted by Whole Foods prohibited all recordings without regard to their relationship to employee rights, the appeals court said.

The court said the NLRB reasonably concluded the policy was overbroad and unlawful.

Whole Foods can accommodate its business interests with the requirements of the NLRA by “narrowing the policies’ scope,” the court said. It noted the board has accepted a no-photography policy where a hospital demonstrated a need for patient privacy.

Kathleen M. McKenna and Andrew E. Rice of Proskauer Rose LLP in New York represented Whole Foods Market Group Inc. NLRB attorneys Linda Dreeben, Heather S. Beard, and Robert J. Englehart represented the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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