William J. Kishman Discusses NLRB Ruling Regarding Whole Foods’ No-Recording Policy
Bingham Greenebaum Doll attorney William J. Kishman discussed a National Labor Relations Board (NLRB) ruling that Whole Foods Market Inc.'s policy prohibiting employees from recording in the workplace without prior approval violates federal labor laws with Reuters Legal recently.
According to the publication, a divided three-member NLRB panel held that Whole Foods' policy was too broad and could be viewed as restricting the right to record concerted activity protected by the National Labor Relations Act (NLRA), such as recording images of picketing, documenting workplace hazards or capturing evidence for later use in employment-related disputes.
The panel said employers can regulate recording in the workplace, but those rules must be narrowly drawn to let workers know their protected rights are not being restricted. They also indicated rules for restricting workplace recording would be legal if they clearly stated that they allow recording activities that are protected by the NLRA.
"As a practical matter, though, it would be extremely difficult to draft and enforce that type of policy," said Kishman, who is not involved in the case. "The employer would have to thread the needle in writing the policy and really have to train managers to enforce it."