In the decision, the NLRB concluded that the Whole Foods policy would reasonably be construed by employees to prohibit their Section 7 labor law right to engage in protected concerted activity to better their working conditions. Despite an effort by Whole Foods to show that the policy was intended to encourage open and frank conversations by eliminating the chilling effect resulting from an employee knowing he or she is being recorded, the NLRB reasoned that workplace photography or recording, covert or otherwise, is an essential piece of employees ability to vindicate their Section 7 rights.
Going forward, it is important to keep in mind that it may be some time before we have clarity on this issue. Technology has always been ahead of our laws and court decisions. On this issue, the NLRBs position has not been tested by any court. We will definitely see more on this topic in the future.
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