The National Labor Relations Board (NLRB), in a 2-1 decision, ruled against blanket employer policies banning employees from taking photos or recordings in the workplace. Such policies would, in the view of the NLRB, having a chilling effect on employee’s ability to record or photograph workplace safety violations or actions that were discriminatory.
Whole Foods’ unsuccessful argument to the NLRB was that its policy allowed for a free and open discussion in the workplace, without concerns of statements appearing on the Internet. But the NLRB found that a blanket ban went too far, as it was “essential” in many cases to have a photo or video in order to prove a violation of an employee’s rights.
It is important to note that anyone taking pictures or video in the workplace or elsewhere is still subject to any applicable state laws requiring consent from one or more of the individuals being recorded or photographed. For example, some states require that all parties to a conversation give consent; whereas other states require consent by only one party, which could be the photographer or videographer.
The National Labor Relations Board’s decision overturned an administrative law judge’s decision in favor of the supermarket chain. Whole Foods must revise or revoke its current policy and communicate to its employees when it has done so.
See Whole Foods Market, Inc., 12/24/2015, 363 NLRB No. 87.