State and federal laws vary on what types of notice and consent are required to electronically record a conversation, whether at work or otherwise.  For example, in Pennsylvania all parties to the conversation must give consent to the recording. In contrast, New Jersey allows recording if only one party to the conversation consents to it.

Now comes the National Labor Relations Board (NLRB) and tells all employers and employees nationwide that an employer’s complete prohibition on audio and video recording at work is unlawful, because it violates employees’ rights to engage in concerted activity relating to the terms and conditions of their employment.

In the December decision, the NLRB invalidated the work rules of Whole Foods Market, Inc., which provided that employees could not “record conversations, phone calls, images or company meetings with any recording device . . . unless prior approval is received from [management].”  Whole Foods stated that the purpose of the policy was 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.”

The NLRB ruled that Whole Foods’ prohibition was too broad and could be read to infringe on the right of employees to engage in concerted activity with each other relating to the terms and conditions of work.  Said the NLRB, “our case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right.”  The NLRB cited examples of recording unlawful threats by employers, unlawful solicitation of grievances by employers, and the use of photographs to document improper conduct by an employer.

Note, however, that the majority did concede that in some circumstances – such as when patient or customer privacy concerns are at issue, or the employer is seeking to protect its trade secrets – a narrower ban on electronic recording could survive scrutiny.

The decision provides a good prompt for employers to consider whether they need an updated, sufficiently tailored policy to restrict electronic recording at work.

Michael Homans is a Labor & Employment attorney and founding partner of HomansPeck LLC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.