The National Labor Relations Board (NLRB) has ruled that upscale grocer, Whole Foods, cannot forbid employees from recording conversations or taking photographs at work without a supervisor’s permission. The ruling, which was not made under California law, effectively permits workers in many states to secretly record and photograph their supervisors.

The NLRB ruled 2-1 that a Whole Foods policy prohibiting such recording and photographs violated federal law and chilled the rights of workers to document unsafe working conditions, or statements that reveal discrimination.

Although it has not yet been tested, the result may be different for California employers. California law requires the consent of all of the parties in order for a conversation to be recorded legally. Whether this state law will change the
result remains an open question. It is uncertain whether the NLRB ruling will supersede California law.

Before you adopt a prohibition on recordation and photography in the workplace it is important to run the content of your policy by your legal counsel in order to attempt to address the holding in the NLRB’s Whole Foods case and also comply with California law.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.