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Can we ban employees from recording meetings or conversations at work?
Employers are prohibited from imposing broad no-recording policies following aruling by the National Labor Relations Board (NLRB) in December 2015.
In that case, the board ruled 2-1 that Whole Foods Market Group Inc. violated federal law with its policy barring employees from making audio or video recordings at team meetings without prior approval from management. While Whole Foods claimed the ban was meant to encourage employees to be more candid in those meetings, the NLRB found that such a policy could easily be interpreted by employees as violating their right to "protected concerted activity"-that is, openly discussing the terms and conditions of their employment with each other-under Section 7 of the National Labor Relations Act (NLRA).
The NLRA applies to both union and nonunion employers. According to the NLRB, disallowing audio and video recordings could interfere with employees' documenting and publicizing discussions about workplace terms and conditions, securing images of unsafe workplace equipment or hazardous conditions, or capturing evidence of the inconsistent application of employer rules.
Unless there is an overriding business interest, no-recording policies violate employees' Section 7 protections. However, an employer may be justified in imposing such a rule to protect the confidentiality of trade secrets, patient medical data, customer information or financial intelligence. To maximize the likelihood that a ban would be allowable, HR should spell out in the policy why this information can't be recorded. As always, have your attorney review any new policy to ensure that the wording is appropriate.
Another scenario in which an employer may be able to ban recordings is when state law requires all parties to agree to being recorded. In that case, managers could simply refuse their consent. The Whole Foods ruling didn't address this because the company policy wasn't state-specific. Check with your attorney before prohibiting all recordings.