NLRB says Whole Foods Market violated federal law when it prohibited employees from recording conversations, phone calls, images, or company meetings with a camera or recording device without prior approval.

Whole Foods claimed that its prohibitions against recording in the workplace were meant to encourage open communication and to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.

The National Labor Relations Board (NLRB) concluded that the rules could reasonably be construed by employees to prohibit activity protected under the National Labor Relations Act. “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected,” the NLRB observed, “if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.”

The NLRB noted that protected conduct may include recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, or recording evidence for later use in employment-related actions.

The NLRB required Whole Foods to post remedial notices at all locations. [Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago (NLRB 2015) nos. 01–CA–096965, 13–CA–103533, and 13–CA–103615]