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.

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Photo of Kathleen Porter Kathleen Porter

Kathy Porter’s practice straddles the areas of intellectual property, business transactions, trade regulation, and Internet law and includes import/export control issues, such as compliance and enforcement, competition, privacy, and data security. She counsels businesses on the development and implementation of data security and…

Kathy Porter’s practice straddles the areas of intellectual property, business transactions, trade regulation, and Internet law and includes import/export control issues, such as compliance and enforcement, competition, privacy, and data security. She counsels businesses on the development and implementation of data security and privacy practices to comply with the patchwork of laws and rules applicable to the collection, use, safeguarding, sharing, and transfer of protected or personal data. She regularly structures arrangements with promoters, marketers, website exchanges, and other third parties for the purchase, sale, sharing, and safeguarding of personal data. Kathy prepares and negotiates representations, warranties, and indemnities regarding personal or protected data and privacy and data practices. She also assists clients with privacy audits and works with third-party certification organizations to obtain certification of companies’ privacy practices. She guides clients through internal investigations to assess and address notice and other obligations regarding privacy breaches. Kathy often works closely with our litigation attorneys to manage external investigations such as those by federal or state regulators. Read her rc.com bio here.