On June 1, 2017, in Whole Foods Market Group, Inc. v. NLRB, 2017 U.S. App. LEXIS 9638, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York and Vermont) affirmed a decision of the National Labor Relations Board (“NLRB”) in which the NLRB found that Whole Food’s policies prohibiting the recording of conversations in the workplace violated the National Labor Relations Act (“NLRA”).

The NLRA guarantees employees the right “to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Further, it is “an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [the NLRA].”

At issue was Whole Foods’ “no-recording policies,” which “prohibited all recording without management approval.” Whole Foods argued that its policies were not intended to interfere with employees’ rights to engage in concerted activity, but rather “to promote employee communication in the workplace.”

After the NLRB determined that the “no-recording policies” did in fact violate the NLRA, Whole Foods appealed to the Second Circuit, which affirmed and held, “The [NLRB]’s finding that recording, in certain instances, can be a protected [NLRA] activity was reasonable. So too was its finding that, because Whole Foods’ no-recording policies prohibited all recording without management approval, employees would reasonably construe the language to prohibit recording protected by [the NLRA].” For example, “[a]s written, those policies prevent employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules without management approval.”

However, the Court did note that “[i]t 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 their narrowing the policies’ scope.”

If you believe that your employer has violated your right to engage in concerted activity protected by the NLRA, it is prudent to speak with a New York City employment attorney to learn all your options.

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