By Marc Zimet, Esq. of Jampol Zimet LLP On December 24^th, an administrative law judge for the NLRB issued a ruling in several cases, including one against Whole Foods Market, holding that an employer may not prohibit employees from recording other employees. In Wholefoods, the issue was whether a rule in the companyaEUR(TM)s general information guide (GIG) prohibiting recording in the workplace without prior management approval was unlawful. The GIG contained two rules, one prohibiting recording of meetings, and the second prohibiting the recording of calls or conversations. The purpose of the rule was to create a work environment in which employees were comfortable and felt at ease to aEURoespeak upaEUR?. Under the National Labor Relation Act, Section 7, employees have aEURoethe right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,aEUR? as well as the right aEURoeto refrain from any or all such activities.aEUR? Section 8(a)(1) of the Act makes it an unfair labor practice for an employer aEURoeto interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7aEUR3 of the Act. If the rule in question explicitly restricts activities protected by Section 7, it would be unlawful. If it does not, there would be no violation unless: aEURoe(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.aEUR? (Lutheran Heritage VillageaEUR"Livonia, 343 NLRB 646 (2004).) According to the NLRB, the acts of recording conversations, phone calls, images, or company meetings with a camera or other recording device are protected Section 7 activity, if the employees are acting in concert for their mutual aid and protection and no overriding employer interest is present. (Rio All-Suites Hotel & Casino, 362 NLRB No. 190, slip op. at 4 (2015).) The NLRB reasoned that such recording could be utilized to record protected picketing, recording unsafe workplace conditions, documenting discussions about employment, or otherwise recording employment negotiations to be used as evidence at a later date. Because the rules contained in the GIG prohibited all workplace recording and applied regardless of the activity being recorded and whether it was a protected activity, the rules were therefore unlawful. To remedy the issue, Wholefoods was ordered to rescind the unlawful provisions, and, until a new handbook was published, provide an insert in the GIG providing a statement of the rulesaEUR(TM) rescission as well as provide a companywide notice of the rule change. The holding by the NLRB serves as a reminder to employers to be careful to ensure employeesaEUR(TM) Section 7 rights are not infringed or otherwise restricted. An employer who creates a work environment wherein employeesaEUR(TM) rights are restricted can be liable for unlawful practices. If you are an employer and would like to review your practices to ensure you are in compliance with Section 7 and the National Labor Relations Act, please contact Marc Zimet at mzimet@jzlaw.com or Alan Jampol at ajampol@jzlaw.com or call (213) 689-8500