To Record or otherwise to Record, Thatrrrs the true question

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Eliminating any possibility it might find yourself on employers’ “nice list,” the nation’s Labor Relations Board (NLRB) ruled on Christmas Eve that the Whole-foods policy featuring an “absolute prohibition” on employees “taking photographs, audio-recording or video-recording at work without management consent and approval” violated the nation’s Labor Relations Act (NLRA).

Inside a divided two-to-one opinion, a lot of the Board ruled that Whole-foods employees reasonably could interpret this insurance policy as prohibiting their utilization of recording devices to help protected concerted activities, “for example photographing picketing, or recording evidence to become presented in administrative or judicial forums in employment-related matters.” By comparison, the dissenting opinion maintained that “an acceptable worker would realize that [Whole Foods’] purpose to maintain these rules would be to promote open, free, spontaneous and honest dialogue ¨C including dialogue paid by Section 7 [from the NLRA] ¨C to not stop Section 7 activity.”

Considering this ruling, employers should review their policies prohibiting tracks at work. Particularly, the Board didn’t rule that the more narrowly-targeted policy, for example one prohibiting recording in a few areas to safeguard private and proprietary information, would instantly violate the Act. Another practical rule employers might have would be to stop mobile phones altogether in work areas during working time in line with the chance of distraction or any other issues of safety they might cause.

The ruling also works as a indication that management should conduct itself at work as if it’s being recorded whatsoever occasions. In Tennessee, Georgia and Alabama, among a number of other states, it’s not illegal for just one person to record a discussion they’re part of without disclosing that they’re doing this to another participants. Ironically, we view several cases where a plaintiff’s “secret tracks” have backfired and really supported the employer’s defense. Plus, juries generally don’t like the thought of “clandestine tracks.”

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