In the latest round of extreme workplace rulings, the National Labor Relations Board has found yet another reasonable employer work rule to violate the National Labor Relations Act. recorderIn this case, Whole Foods Market, Inc., the employer had implemented two “no recording” policies: one that prohibited employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the other that prohibited employees from recording conversations without prior management approval.

The first policy stated that it was intended “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The second policy specifically explained that,

“The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”

That seems pretty rational, doesn’t it?

But according to the Board, this rule had the effect of violating employees’ rights under Section 7 of the NLRA to engage in concerted activity regarding their terms and conditions of employment for their mutual aid and protection. Under the rule, according to the Board, employees would be prohibited from engaging in protected activities such as

“recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.”

The Board found that the employer’s interest in implementing the rule – to encourage open communication and foster trust – did not override these protected employee activities. It noted that there were many cases in which covert recordings were essential to vindicating employees’ Section 7 rights. Thus, the Board found, photography and audio/video recordings in the workplace can themselves be protected activities under certain circumstances. Because the employer’s rule, with its blanket prohibition on recordings, did not recognize such circumstances, the Board found that it was too broad in scope.

So an employer could have a “no recordings” rule, as long as the rule exempted protected activities. But realistically, how does the employer draw that line? Frankly, almost every business meeting could be argued to have an impact on an employee’s terms and conditions of employment. The Board’s ruling essentially eviscerates no recording rules.

When will the madness end?