Whole Foods Employee Workplace Recording Restrictions Too All-Consuming
Before grocery giant Whole Foods was purchased by online retail behemoth Amazon, it was dealt a blow by the National Labor Relations Board (NLRB) for its overreaching “no-recording” policy. In a summary opinion, the Second Circuit aligned with the NLRB’s decision finding recording, in certain instances, can be a protected activity under Section 7 of the National Labor Relations Act (NLRA). Further, because Whole Foods' no-recording policies prohibited all recording without management approval, i.e. 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, employees would reasonably construe the language to prohibit recording protected by Section 7. The grocer’s policies prohibit recording regardless of whether the recording is in relation to employees' exercise of their NLRA rights. The NRLB and the court further warned the policies' overbroad language could “chill” an employee's exercise of her Section 7 rights because they are not limited to controlling those activities in which employees are not acting in concert. The court did note that no-recording policies might pass NLRA muster if their scope is narrowed to meet the employer’s interests without quashing the employee’s rights.