Second Circuit Affirms Employer's No-Recording Rule Violates the NLRA

On 6/1/17, the 2nd Circuit Court of Appeals issued a summary order stating that Whole Foods Market, Inc.’s policy against workplace recording violates federal law. The policy prohibited any and all audio or video recording at work.

The National Labor Relations Board (“the Board”) had previously decided the policy was illegal under the National Labor Relations Act (“NLRA”) because it could be construed as prohibiting protected activity. Whole Foods appealed the decision to the 2nd Circuit. The 2nd Circuit applied the Lutheran Heritage test when analyzing the issues. The test asks: (1) would employees reasonably construe the language to prohibit protected activity; or (2) was the rule promulgated in response to union activity; or (3) has the rule ever been applied to restrict the exercise of protected rights? If the answer to any of these questions is “yes,” then the rule is a violation of the NLRA.

Whole Foods argued against the applicability of the Lutheran Heritage test at the 2nd Circuit. Unfortunately, because this argument was raised for the first time on appeal, the 2nd Circuit refused to consider it. As a result, the 2nd Circuit applied the Lutheran Heritage test.

The Board had previously discussed in its original decision that, in certain instances, recording can be protected activity. The 2nd Circuit agreed with this conclusion. And because Whole Foods’ rule prohibits all recording, employees could reasonably construe the rule to prohibit protected activity. Therefore, the rule violated the NLRA under the Lutheran Heritage test. No word yet on whether Whole Foods plans to appeal.

The 2nd Circuit clarifies in a footnote that it should be possible for an employer to craft a policy that limits recording audio and video in the workplace without violating the NLRA. This would require specifically narrowing the policy to a specific, genuine privacy or other interest. any such policies and employment contract provisions against recording should be carefully drafted under the advice of counsel.

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