Second Circuit Upholds NLRB Whole Foods Decision Allowing Employee Recording in the Workplace

By Christopher A. Johlie and Melissa D. Sobota - Franczek Radelet P.C.

June 20, 2017

With little fanfare, the Second Circuit Court of Appeals recently upheld a National Labor Relations Board decision striking down Whole Foods’ policies prohibiting workplace audio or video recording without prior approval from management. In an unpublished summary order with no precedential value, the Second Circuit ruled that the NLRB’s decision was supported by substantial evidence and consistent with the National Labor Relations Act.

The NLRB found Whole Foods’ policies unlawful because they were overly broad and would discourage employees from communicating about unions or engaging in other protected concerted activities. For example, the NLRB explained that the NLRA protected activities such as “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions,” all of which were prohibited under Whole Foods’ policies.

Whole Foods appealed the NLRB’s decision to the Second Circuit. In upholding the NLRB’s decision, the court analyzed whether employees would construe the policies as prohibiting protected activity. The court noted that because Whole Foods’ policies prohibited all recordings without management approval, employees would reasonably construe the policies to also prohibit recordings that are protected by Section 7.

Many labor law practitioners and human resource professionals thought this case might be an opportunity for a federal appeals court to review and possibly throw out the Lutheran Heritage test that the NLRB uses to evaluate employer workplace policies and rules. However, the court explained that it did not pass on the Lutheran Heritage test because Whole Foods did not raise that issue before the NLRB. Although Lutheran Heritage lives on, employers may take some comfort in that the court left the door open for employers to draft policies that are more narrowly tailored to employer interests, such as protecting a patient’s right to privacy in a medical setting, and do not impose a blanket ban on all recording.