The National Labor Relations Board recently held that employers generally may not forbid employees from taking photos or recording conversations at the workplace. “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”
In this case, Whole Foods had adopted a rule prohibiting employees from making such recordings without first obtaining a manager’s permission. The NLRB found that employees would reasonably interpret the rule as prohibiting activities protected by Section 7, such as recording picketing, documenting unsafe workplace conditions, documenting and publicizing terms and conditions of employment, or recording evidence for ULPs or employment-related proceedings. The NLRB noted that in many cases, visual or audio recordings are “an essential element” in vindicating protected rights.
There may still be situations in which an employer can justify a ‘no recording’ rule. For instance, the Board has previously upheld a hospital’s rule prohibiting using cameras to record images, reasoning that the rule was justified by patient privacy concerns. However, this ruling likely means workers can now record a wide range of workplace situations, including captive audience meetings, and better document potential unfair labor practices or poor working conditions.
Note, however, that if a conversation is considered “private,” Washington State law prohibits recording the conversation without all parties’ consent. Whether a conversation is private depends on a number of case-specific factors, such as the subjective intention of the parties (i.e., whether they believed that the conversation was intended only for the persons involved), the reasonableness of any expectation that the conversation would be private, the location of the conversation, and whether third parties were present.
Unions should be aware of the new decision and be on the lookout for employer rules that purport to ban employees from using smartphones to capture audio or video recordings at work. Unless narrowly drafted and supported by legitimate employer interests, such rules are likely now unlawful.
A copy of the full decision in this case, Whole Foods Market, Inc., 363 NLRB No. 87 (2015) is available here.