NLRB Finds Employer Rule Prohibiting Audio and Image Recording at Work Violates Employees' Labor Rights

The National Labor Relations Board (“Board”) recently held that employees can take photos and record conversations in the workplace to safeguard their labor rights, setting an important precedent in the workplace in an era of smartphones and social media.

The case took issue with Whole Foods’ rule prohibiting employees from taking photos or recording conversations in a store without a managers’ prior permission or unless all parties involved give consent.  The Board found the rule unlawful because of its potential chilling effect on employees' Section 7 rights under the National Labor Relations Act.  Section 7 rights include the right to take action together with other workers for the purpose of collective bargaining or protecting each other’s work place rights.

The Board made it clear workers have the right to use smartphones or other recording devices in their workplace to:

  • document unsafe working conditions or hazards,
  • record uneven application of workplace rules, 
  • capture evidence to use in employment-relations actions (such as conversations revealing discrimination), and
  • record discussions about terms and conditions of employment. 

The Board specifically reiterated the concept that photography and audio or video recording is protected in the workplace when done in the context of protected concerted activity or Union activity.  Where employees are acting together and for the mutual aid and protection of their coworkers, and no overriding employer interest is present, such conduct is protected by law.  Accordingly, the Board ordered Whole Foods to rescind or revise its handbook rules related to recording, and notify employees of this change.

The Board’s ruling is significant given the potential impact of smartphones in the workplace.  First, managers’ knowledge of workers’ ability to take photos and record conversations should act as a deterrent to unlawful conduct by management and encourage compliance with the law.  Second, when labor laws are broken, workers’ ability to prove and vindicate their rights increases.  Third, the ruling signals another potentially powerful organizing tool.  For example, workers in an organizing drive can record “captive audience” meetings to reveal a company’s aggressive anti-union tactics and expose the meetings’ true purpose.  Lastly, any company with a policy similar to Whole Foods’ policy can now be more easily challenged as to that policy.

State laws on recording may still apply in certain scenarios.  For example, California requires that parties to an audio recording or phone conversation must consent to its recording (for more detail, see Cal. Penal Code § 632). Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington have similar consent laws related to recording.

For more information regarding the use of smartphones or other devices in the workplace, contact your labor law counsel.

By Caroline Cohen | January 8, 2016

Legal Developments