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TOP TIP: Banning Workplace Recordings Legally.

November 26, 2013

Thirteen states, including Maryland, Delaware and Pennsylvania, prohibit audio recordings that lack the consent of all parties being recorded.  There is no such law in the other thirty-seven other states, meaning that employees can secretly tape meetings and discussions with co-workers and supervisors (see Racial Harassment note above for a striking example of this).  This can be prohibited by company policy – but employers need to be careful in drafting such policies to avoid violations of the National Labor Relations Act (NLRA).

Providing useful guidance on this issue, an administrative law judge (ALJ) for the National Labor Relations Board (NLRB) found Whole Foods Market’s policy, which prohibited any recordings of conversations without management authorization, to be lawful under the NLRA.  The policy at issue stated as follows:

(i) Team Member Recordings

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 dialogue especially when sensitive or confidential matters are being discussed. Violation of this policy will result in corrective action up to and including discharge.

There are several points that can be drawn from the ALJ’s opinion and the Whole Foods policy that should be considered in drafting and implementing a “no-recordings” policy:

  • A no-recordings ban in the workplace should be supported by a legitimate business reason.  One such reason, as Whole Foods explained in its policy, can be the need to avoid a “chilling effect” on open and frank discussions.
  • The reason for the no-recordings ban should be included within the policy.
  • Actual, concrete (not speculative) examples of why the ban is required are useful for purposes of establishing the legitimacy of the business reason.
  • The policy should be applied consistently to all employees, including management.
  • The ban should not be implemented in response to union activity.
  • When applying the policy to a particular employee, ensure that the Company is not restricting employee activity that is protected by the NLRA.