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A Workplace Law Client Alert

By: Donald H. Scharg


In December 2016, the National Labor Relations Board (“NLRB”) issued its decision in Whole Foods Market which struck down an employer’s work rule which prohibited employees from audio and video recording, and taking photographs, in the workplace without prior management approval. 

According to the NLRB, the work rule was overbroad because its requirement of management approval could deter employees from using a smart phone to document unsafe workplace equipment or hazardous working conditions, or other workplace activity the employee had a right to document for later use in employment-related court or agency actions. This NLRB ruling applies to both union and nonunion workplaces and can affect every employer in the country.

The employer appealed the NLRB ruling to the Second Circuit Court of Appeals. On June 1, 2017, in Whole Foods Market Group, Inc. v. NLRB, the appeals court agreed with the NLRB’s decision invalidating the work rule. The Court focused on the requirement of management approval, agreeing with the NLRB that “employees would reasonably construe the language to prohibit” all protected recording activities and chill employee labor law rights.

The appellate court’s decision affirming the NLRB is disappointing for employers, but not unexpected. There may be a silver lining! The court did not approve a total ban on the regulation of audio and video recording and photographs in the workplace or prohibit all management approval requirements. The door is left open for carefully drafted work rules meeting the employer’s need to regulate some recording and picture taking while balancing federally protected employee rights.

Case: Whole Foods Mkt. Group, Inc. v. NLRB, No. 16-0002 (2d. Cir. June 1, 2017).

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