[co-author: Jeruska Lugo-Sanchez - Summer Associate]

On June 1, 2017, the Second Circuit empowered employees with smartphones by affirming the National Labor Relations Board’s (NLRB’s) recent decision that no-recording policies violate Section 8(a)(1) of the National Labor Relations Act (NLRA). By upholding the NLRB’s decision, the court found that Whole Foods’ policy, which generally prohibited all recording (audio, video and image) in the workplace absent prior approval, inhibited employees’ Section 7 rights (Section 7) to self-organize and engage in concerted activities.

Unmoved by the concern that permitting recording in the workplace would inhibit open dialogue among employees and managers, the court reasoned that employees would interpret the categorical prohibition as preventing them from engaging in Section 7 activities, such as recording images of picketing or unsafe conditions. However, in a footnote, the court acknowledged that not every no-recording policy infringes on an employee’s Section 7 rights and indicated that employers could draft such policies in a manner that does not infringe on an employee’s rights.

While employers may reasonably anticipate the possibility that a newly constituted NLRB under the Trump administration will reverse its position on this issue, the timing and extent of any such change cannot be predicted. In the meantime, employers should review their no-recording policies to ensure that they do not impact employees’ Section 7 rights. To the extent employers have blanket no-recording policies, such policies should be modified or eliminated. 

Employers seeking to maintain a limited no-recording policy should consider narrowing the prohibition to restrict only certain types of recordings. For example, a prohibition on recordings of trade secrets or confidential information (appropriately defined) might pass muster. Alternatively, an employer might add a savings clause explicitly stating that the policy does not restrict or apply to any Section 7 activities, but the NLRB’s approach to savings clauses in the context of other employment policies suggests that a savings clause alone may not appease it.

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