On Christmas Eve, the National Labor Relations Board (NLRB) held that an employer’s policy banning photos and recordings in the workplace violated workers’ rights under the National Labor Relations Act (NLRA). Whole Foods Market, Inc. (NLRB 2015). The NLRA gives workers, whether they are in a union or not, the right to engage in protected and concerted activity, which includes the ability to discuss terms and conditions of their employment with each other and with third parties.
The policy banned workers from taking photos or recording conversations, meetings, phone calls, and other workplace activities without prior approval. Whole Foods said the policy was intended to promote open communication in the workplace without concerns about being recorded. However, the NLRB determined the blanket ban went too far. The NRLB said the policy would have a chilling effect on workers’ rights as it could be interpreted to ban workers from recording safety violations, discriminatory actions, or other protected activity like picketing or discussions about their pay, benefits, or working conditions. Whole Foods must revise or revoke its policy and send a follow-up communication to its employees.
The NLRB previously held that an Arizona hospital could ban workers from taking photos at work. Flagstaff Medical Center (NLRB 2011). In that case, the Board held the ban was necessary to protect patients’ privacy interests. The NLRB did not find that Whole Foods’ aim of promoting open discussion at work rose to the level of protecting patient privacy.
This case is another example of the NLRB going after what it sees as overly broad employer policies. A policy this is narrowly tailored and designed to protect important interests like patient privacy rights is more likely to pass muster.
Please note that the NLRA is not the only law potentially at play when it comes to taking photos or recordings at work. Some state laws require consent from one or more individuals being photographed or recorded. Even absent an employer policy, workers would need to comply with applicable state law.