How to Create a Lawful Voice-Recording Ban in the Workplace

Many employment handbooks contain a provision banning the recording of conversations in the workplace.  A NLRB ALJ recently found that a policy of Whole Foods prohibiting employees from recording conversations was lawful under the NLRA.  Whole Food’s policy stated:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership.  The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.  This concern can inhibit spontaneous and honest dialogues especially when sensitive or confidential matters are being discussed.

In Whole Foods Markets, Inc., NLRB ALJ, No. 1-CA-96965, 10/30/13, the NLRB’s General Counsel argued Whole Foods recording policy was overbroad and illegal because employees would believe it prohibited them from engaging in Union activity or concerted activities protected by the NLRA.  Specifically, the NLRB’s General Counsel argued that the recording ban prohibited the use of recording devices to collect evidence for administrative and judicial forums.  Whole Foods argued that allowing the recording of conversations or meetings would discourage Whole Food employees from speaking openly with respect to work issues.  Whole Foods argued their employees would be less likely to speak openly about work place issues if a recorded conversation of their criticisms could be handed over to their supervisors.

The ALJ agreed with Whole Foods’ position and held no reasonable employee would view Whole Foods’ Team Member Recordings policy as prohibiting activity protected under the NLRA.  In his decision, the ALJ wrote:

The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.  This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

The ALJ also found that Whole Foods’ recording policy was not adopted in response to Union activity or that it had been applied to restrict activity protected by the NLRA.

Employers should review their existing policies to ensure that the reasons for their policies prohibiting the recording of conversations are clear.  Employers should also review their handbook prior to the end of the year to ensure that their policies are meeting the NLRB’s evolving standards.  If interested in aligning your company’s workplace policies with the most recent NLRB decisions, please contact our St. Louis Employment Law Firm at 314-567-7350.

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