Legal to Ban Recording Conversations at Work?

A judge with the National Labor Relations board recently upheld Whole Foods' ban on recording employees at work. What can employers learn from the ruling?

The case centered on the issue of whether an employer's ban on recording conversations in the workplace violates the National Labor Relations Act.

If you don't already have a workplace recording policy, you might want to consider drafting one that clarifies your position.

Whole Foods' Recording Ban

Whole Foods Market enacted a company policy that made it a violation to record conversations in the workplace -- including parking lots and the store front -- with a tape recorder or other recording device. The goal of the policy was to "prevent a chilling effect" on "spontaneous and honest dialogue, especially when sensitive or confidential matters are being discussed."

Administrative law judge Steven Davis concluded that this policy did not violate the rights of Whole Foods employees to engage in protected concerted activity under the National Labor Relations Act because:

• The only activity the rule forbids is recording conversations or activities with a recording device. Employees could still speak to other employees and engage in protected, concerted activities in those conversations.
• There's no legal precedent that recognizes making recordings of conversations in the workplace as a protected right.
• The rule addresses legitimate business concerns and applies only when an employee is on work time.

Davis specifically rejected arguments that Whole Foods' policy prevents an employee from recording conversations related to protected activities -- such as allegedly unlawful statements made by a supervisor, which could be used in an action for employment-related matters.

Instead, Davis explained, employees can take notes of conversations, obtain information through legal discovery, or simply ask for permission to record.

Steps Employers Should Take

If you have a workplace recording policy, keep the following tips in mind:

• Clearly state the reasons for the policy. For example, in Whole Foods' example, the company relied on the protection of open and honest dialogue.
• Don't put in place a recording ban (or amend an existing one) in response to union activity.
• Make sure the policy doesn't interfere with the recording of "concerted activity" under Section 7 of the NLRA -- namely, activity related to wages, benefits, terms and conditions of employment, union issues, and so forth.
• Like Whole Foods, limit the policy to working time and work spaces.

For more tips, you may want to consult an experienced labor law attorney.

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Related Resources:

• NLRB Poster Rule Invalid, Federal Courts Rule (FindLaw's Free Enterprise)
• Can My Employees Form a Union? (FindLaw's Free Enterprise)
• Is It Legal to Spy on Your Employees? (FindLaw's Free Enterprise)
• Find the Right Employment Contract for Your Business Needs (LegalStreet)
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