Issuing yet another blow to commonly promulgated workplace rules, the National Labor Relations Board ("NLRB") struck down a Whole Foods Market policy prohibiting employees from recording conversations, meetings, phone calls and other activities at work. [Whole Foods Market, Inc., 2015 BL 424627, 363 N.L.R.B. No. 87 (Dec. 24, 2015)]. Despite Whole Foods' explanation that the policy was specifically designed to "encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust," and "to eliminate a chilling effect on the expression of views . . . especially when sensitive or confidential matters are being discussed," the NLRB found that the policy could have a chilling effect on an employee's section 7 rights.
Whole Foods argued that the policy fostered open dialogue in its Town Hall meetings where managers meet with employees outside the presence of their direct supervisors, in part to hear criticism of store management, and helped to facilitate meetings regarding confidential requests for assistance from the company's emergency fund. In a 2-1 decision, however, the majority disagreed, finding that the policies could be read to limit the exercise of an employee's section 7 rights under the National Labor Relations Act (“NLRA”). In particular, the NLRB struck the rules because they did not specifically carve out an exception for recordings made in the furtherance of section 7 activity. Notably, the dissenting NLRB member sided with Whole Foods, finding that the policies expressly encouraged open communication.
Given the NLRB's narrow reading of Whole Foods’ policies, along with other 2015 NLRB decisions striking down common workplace policies, employers should consider reviewing their handbooks and policies for any that could be viewed as chilling section 7 rights. As always, it may be prudent to work with an experienced labor and employment law attorney to narrowly tailor your work rules in accordance with the NLRA.
This article is presented for informational purposes only and is not intended to constitute legal advice.
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