Federal Court to Whole Foods – Candid Camera Policy No Laughing Matter under the NLRA

By: Attorney Bryan Symes

Recently, the federal Second Circuit Court of Appeals [which makes decisions primarily impacting businesses located in Connecticut, New York and Vermont], in an unpublished summary order [which carries no precedential impact], upheld a National Labor Relations Board decision that the popular grocery chain, Whole Foods, violated the National Labor Relations Act by maintaining an overly-broad no-recording policy.   The opinion comes in Whole Foods Mkt. Grp., Inc. v. NLRB, Case No. 16-346, Doc. No. 81-1, available here.

In Whole Foods, the Court concluded that, “[i]n determining whether the mere maintenance of rules such as those at issue here violates [the NLRA], the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their [legal] rights [under the NLRA].”  According to the Court, Whole Foods’s no-recording policies “prohibited all recording without management approval,” and for this reason, “employees would reasonably construe the language to prohibit recording protected [by the NLRA].”  On this basis, the Court agreed with the NLRB that the policy was unlawful.

The bottom line for members of the management community—categorical prohibitions on all workplace recordings violates the NLRA.   This is true even in a non-union workplace setting.   Although the decision is disappointing to many, the Court left open the possibility that narrowly-tailored no-recording policies, which do not trample on rights protected by the NLRA, might pass muster in a different case.   Also, it is worth nothing that the NLRB still retains its Democratic majority, and will until President Trump finishes his nominating process and his nominees are confirmed.   Once the NLRB shifts to a Republican majority, it is conceivable that the NLRB’s position on workplace recording policies takes a decidedly pro-employer shift. 

This article should not be construed as legal advice applicable to your specific situation and is intended for general information purposes only. If you have any questions regarding this article, you should consult your legal counsel.