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With the omnipresent smartphone making its way into the workplace, employers have tried to address some of the concerns that come along with such devices. Secretly recording the conversations of others with a cell phone can be very easy given today’s discrete technology. Predictably, many employers would (and do) take issue with such activity.  Moreover, such activity is illegal under Maryland law.  On the other hand, one federal agency—the National Labor Relations Board (“NLRB” or “the Board”)—asserts that employees should have the right to secretly record others as an exercise of their rights in the workplace.  This divergence between federal and state law leaves Maryland employers in a difficult position.

On February 24, 2017, the United States Court of Appeals for the Second Circuit heard oral argument in the appeal of an NLRB decision regarding Whole Foods’ policy on “Team Member Recordings.” Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015). Whole Foods is hoping the Second Circuit will overturn the Board’s ruling which found that its policy against recording conversations without prior approval violated the National Labor Relations Act (“NLRA”).

Federal Law and the Whole Foods Decision

Section 7 of NLRA provides certain rights to employees. Among those is the right to participate in concerted activities for mutual aid and protection. Essentially, employees are allowed to take steps for their own benefit where they feel there is an issue in the workplace. Sometimes employer policies are at odds with actions that the NLRA protects.

The NLRB is responsible for determining the lawfulness of employer policies and actions. Recently, the Board has asserted that a broad array of activities fall under the protections of Section 7, including recording in the workplace. Section 7 does not specifically enumerate all examples of protected activity. Concerted activity for mutual aid and protection may take a traditional form such as a strike or petition. However, the NLRB has expanded the interpretation of Section 7 to include activities that employers often seek to prohibit.

Whole Foods’ policy prohibited unconsented recording of others. The policy was in place because Whole Foods thought that employees and management alike would feel more open to expressing their opinions and concerns without the fear of being secretly recorded. In a case which arose in New York, the NLRB rejected Whole Foods’ policy, holding that this policy effectively chilled the rights of workers to record and document illegal practices in their workplaces. The relevant part of the policy stated:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. 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.

The Board found that even though Whole Foods’ policy was well-intentioned, its chilling effect on worker rights was a violation of Section 7 of the NLRA.

Rules that may be intuitive to businesses seeking to limit harmful or distracting interactions in and out of the workplace can violate the NLRA. Here are a few examples of recording policies that the Board has found to violate Section 7:

“Taking unauthorized pictures or video on company property is prohibited.”

“No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any employee or operation…”

“A total ban on use or possession of personal electronic equipment on Employer property.”

Maryland Law and Whole Foods’ Impact

Maryland’s Wiretapping Law requires the consent of all parties being recorded. See MD Code, Courts and Judicial Proceedings, § 10-402 (2017). While some states do not require the consent of all parties (like the District of Columbia), Maryland requires such consent.   It is therefore illegal under Maryland law for coworkers, managers, or anyone else in the workplace to have their conversations recorded without their permission. Nonconsensual recording can result in criminal and/or civil penalties.

The activity deemed “protected” by the NLRB would conflict with state laws and the NLRA. In a short footnote, the Board stated:

The Respondent also argues that nonconsensual recording is unlawful in many of the states in which it operates.  The Respondent’s rules, however, are not limited to stores in those states; they apply companywide. Moreover, the Respondent’s rules do not refer to those laws and do not specify that the recording restrictions are limited to recording that does not comply with State law.

The Board therefore held that Whole Foods’ policy was too broad, not tailored to adhere to state wiretapping laws and, therefore, violated employee Section 7 rights.

So where does that leave employers in Maryland, and 12 other states with similar wiretapping restrictions? Can businesses justify their restrictions based on state laws or do the NLRA’s Section 7 protections override state laws?

The Whole Foods appeal may provide guidance on this significant conflict between the NLRA and state wiretapping laws. Until that clarity has been fleshed out, employers must remain aware of this conflict and assess whether any changes should be made in their policies and how those policies are to be enforced.

For more information or questions related to your labor and employment law issues, feel free to contact the Labor and Employment practice group at Ferguson, Schetelich & Ballew, P.A.


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