NLRB Nixes “No Recording” Rule

By Doug Towns & Lori Phillips

In Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), a divided three-member panel of the NLRB ruled that an employer’s blanket rule prohibiting workplace recording of conversations, phone calls, or images with a camera or other recording device, such as a smartphone, without prior management approval was unlawful. The Board concluded that Whole Foods’ “no recording” rule could reasonably be construed by employees to prohibit Section 7 activity and is unlawful. The Board rejected Whole Foods’ argument that the rule was necessary to preserve employees’ privacy interests and to prevent disclosure of confidential business strategy and trade secrets. The case is a reminder that the Board will closely scrutinize blanket rules—in unionized or non-unionized environments—that arguably prevent or chill employees from talking about matters that could implicate a union or otherwise touch on other terms and conditions of employment.